Son Excellence Monsieur Jean-Yves Le Drian
Ministre de l’Europe et des Affaires étrangères
37, Quai d'Orsay
F - 75351- PARIS
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
EUROPEAN COMMISSION
Brussels, 5.4.2021
C(2021) 2488 final
In the published version of this decision,
some information has been omitted,
pursuant to articles 30 and 31 of Council
Regulation (EU) 2015/1589 of 13 July 2015
laying down detailed rules for the
application of Article 108 of the Treaty on
the Functioning of the European Union,
concerning non-disclosure of information
covered by professional secrecy. The
omissions are shown thus […]
PUBLIC VERSION
This document is made available for
information purposes only.
Subject: State Aid SA.59913 – France
COVID-19 – Recapitalisation of Air France and the Air France –
KLM Holding
1. PROCEDURE ............................................................................................................. 3
2. DESCRIPTION OF THE MEASURE ........................................................................ 4
2.1. The impact of the COVID-19 crisis .................................................................. 4
2.2. Objective of the Measure ................................................................................... 9
2.3. Nature and form of aid .................................................................................... 12
2.4. Legal basis ....................................................................................................... 12
2.5. Administration of the Measure ........................................................................ 12
2.6. Budget and duration of the Measure ............................................................... 12
2.7. Beneficiary ...................................................................................................... 12
2.7.1. Overview of the Beneficiary ............................................................. 13
2.7.2. Description of the mirror instruments mechanism ............................ 14
2.7.3. Relationships between Air France and KLM .................................... 15
2.7.4. Ring-fencing commitments ............................................................... 16
2.8. Basic elements of the Measure ........................................................................ 17
2.8.1. Equity participation under section 3.11 of the Temporary
Framework ......................................................................................... 18
2
2.8.2. Hybrid instrument under section 3.11 of the Temporary
Framework ......................................................................................... 19
2.8.3. Step-up mechanism ........................................................................... 22
2.8.4. Structural Commitments .................................................................... 23
2.8.5. Behavioural Commitments ................................................................ 27
2.9. Cumulation ...................................................................................................... 28
2.10. Monitoring and reporting. ............................................................................... 29
3. ASSESSMENT ......................................................................................................... 30
3.1. Lawfulness of the Measure .............................................................................. 30
3.2. Existence of State aid ...................................................................................... 30
3.3. Compatibility ................................................................................................... 32
3.3.1. Applicability ...................................................................................... 33
3.3.2. Eligibility and entry conditions ......................................................... 33
3.3.3. Types of recapitalisation measures .................................................... 35
3.3.4. Amount of the recapitalisation .......................................................... 36
3.3.4.1. Whether the public support is limited to the
minimum needed to ensure the viability of the
Beneficiary ........................................................................ 39
3.3.4.2. Whether the public support is limited to the
minimum needed to restore the capital structure of
the Beneficiary................................................................... 40
3.3.5. Remuneration and exit of the State.................................................... 43
3.3.5.1. The Hybrid Instrument ...................................................... 43
3.3.5.2. The Equity Participation .................................................... 45
3.3.6. Governance and prevention of undue distortions of
competition ........................................................................................ 48
3.3.6.1. Measures to preserve effective competition in
situations of significant market power .............................. 49
(a) Identification of the relevant markets ................................ 49
(b) Overview of the relevant airports for the
Beneficiary ........................................................................ 49
(c) Assessment of the Beneficiary’s market power at
the relevant airports ........................................................... 51
(i) Conditions for the Beneficiary’s significant market
power at the relevant airports ............................................ 51
(ii) Methodology...................................................................... 52
(d) Airport-by-airport assessment ........................................... 53
(i) Paris-Charles de Gaulle airport (CDG) ............................. 53
(ii) Paris-Orly airport (ORY) ................................................... 54
(iii) Paris airports (CDG+ORY) ............................................... 57
(iv) Lyon-Saint Exupéry (LYS) ............................................... 58
(v) Conclusion ......................................................................... 59
(e) Assessment of the Structural Commitments...................... 59
(i) Scope of the Structural Commitments ............................... 59
3
(ii) Duration of the Structural Commitments .......................... 62
(iii) Eligibility criteria for the remedy taker ............................. 64
(iv) Conclusion on the Structural Commitments...................... 65
3.3.6.2. Other governance conditions ............................................. 66
3.3.7. Exit of the State from the participation resulting from the
recapitalisation ................................................................................... 67
3.3.8. Section 4 of the Temporary Framework ............................................ 68
3.3.9. Conclusion on compliance with the Temporary Framework ............ 68
3.4. Conclusion on the assessment of the Measure ................................................ 68
4. CONCLUSION ......................................................................................................... 69
Excellency,
1. PROCEDURE
(1) Following pre-notification contacts
1
, by electronic notification of 31 March 2021,
France (also referred to as the “State”) notified aid in the form of a
recapitalisation of Société Air France S.A. (“Air France”) and Air France-KLM
S.A. (the “Holding”) (the “Measure”) under the Temporary Framework for State
aid measures to support the economy in the current COVID-19 outbreak, as
amended (the “Temporary Framework”)
2
. The Measure aims at restoring the
balance sheet position and liquidity of Air France in the exceptional situation
caused by the COVID-19 pandemic.
1
France sent a first note informing the Commission of the planned recapitalisation on 2 December
2020. The Commission sent several information requests to France. In answer to those requests,
France provided further sets of information on 8, 10, 11, 14, 15, 16 and 20 December 2020, 7, 12, 20,
21, 22, 25 and 28 January, 2, 9, 15, 16, 17, 19, 22, 23 and 24 February, 1, 2, 4, 9, 12, 15, 16, 17, 18,
20, 21, 24, 25, 26, 28, 29, 30 and 31 March and 1 and 2 April 2021. The Measure was also discussed
between France and the Commission services in the context of several calls during the course of
December 2020 and in January, February and March 2021.
2
Communication from the Commission - Temporary framework for State aid measures to support the
economy in the current COVID-19 outbreak, 19 March 2020, OJ C 91I, 20.3.2020, p. 1, as amended
by Communication from the Commission C(2020) 2215 final of 3 April 2020 on the Amendment of
the Temporary Framework for State aid measures to support the economy in the current COVID-19
outbreak, OJ C 112I , 4.4.2020, p. 1, by Communication from the Commission C(2020) 3156 final of 8
May 2020 on the Amendment of the Temporary Framework for State aid measures to support the
economy in the current COVID-19 outbreak, OJ C 164, 13.5.2020, p. 3, by Communication from the
Commission C(2020) 4509 final of 29 June 2020 on the Third Amendment of the Temporary
Framework for State aid measures to support the economy in the current COVID-19 outbreak, OJ C
218, 2.7.2020, p. 3, by Communication from the Commission C(2020) 7127 final of 13 October 2020
on the Fourth Amendment of the Temporary Framework for State aid measures to support the
economy in the current COVID-19 outbreak and amendment to the Annex to the Communication from
the Commission to the Member States on the application of Articles 107 and 108 of the Treaty on the
Functioning of the European Union to short-term export-credit insurance, OJ C 340 I, 13.10.2020, p. 1,
and by Communication from the Commission C(2021) 564 final of 28 January 2021 on the Fifth
Amendment to the Temporary Framework for State aid measures to support the economy in the
current COVID-19 outbreak and amendment to the Annex to the Communication from the
Commission to the Member States on the application of Articles 107 and 108 of the Treaty on the
Functioning of the European Union to short-term export-credit insurance, OJ C 34, 1.2.2021, p. 6.
4
(2) France exceptionally agrees to waive its rights deriving from Article 342 of the
Treaty on the Functioning of the European Union (TFEU), in conjunction with
Article 3 of Regulation 1/1958
3
, and to have this Decision adopted and notified in
English. France transmitted the language waiver on 24 March 2021.
2. DESCRIPTION OF THE MEASURE
(3) The Measure follows the grant by France to Air France of a State guarantee (the
“State Guarantee”) and a shareholder loan (the “State Loan”) that the
Commission approved in its decision of 4 May 2020
4
(the “State Guarantee and
Loan Decision”) as compatible with the internal market under Article 107(3)(b)
TFEU.
2.1. The impact of the COVID-19 crisis
(4) According to the French authorities, Air France was severely affected by the
COVID-19 crisis and the significant fall in air traffic it caused. As Air France is
the main subsidiary of the Holding, the negative effects of the COVID-19 crisis
on Air France also affected the Holding.
(5) France explained that the COVID-19 crisis started to affect the French air
transport sector from the second half of February 2020. In particular, since
February 2020, French authorities issued recommendations to stop travelling from
France to areas affected by the virus, and adopted measures to close borders and
restrict population movements.
(6) The COVID-19 containment measures adopted by the French authorities
included, among other things, a national confinement from 17 March 2020
(phased out in two successive stages starting on 11 May and 2 June 2020), as well
as a second national confinement from 28 October 2020 (phased out as from 15
December 2020). Local confinements were then implemented as of 26 February
2021 and further expanded as of 19 March 2021. Another confinement has been
announced on 31 March 2021 and is still in place at the date of this Decision.
(7) France also implemented border restriction measures, including the closure of its
borders between 17 March and 15 June 2020. Since then, France progressively
partly reopened its borders, but restrictions remained in place. At the end of
October 2020, entry onto French territory from a number of authorised countries
was made conditional on several factors such as the absence of COVID-19
symptoms and a negative COVID-19 test.
(8) From 31 January 2021, all entry into and exit from France to or from a third
country to the European Union have been prohibited, unless there are compelling
reasons. In addition, entries into France, including for the European Union, are
3
Regulation No 1 determining the languages to be used by the European Economic Community, OJ 17,
6.10.1958, p. 385.
4
Decision of the Commission of 4 May 2020, SA.57082 (2020/N) – France – COVID-19 –
Encadrement temporaire 107(3)(b) – Garantie et prêt d’actionnaire au bénéfice d’Air France (as
corrected by the correcting decision of 17 December 2020), paras. 60-87.
5
subject to the presentation of a negative PCR test. Finally, travel in overseas areas
is allowed only for compelling reasons.
(9) Other countries also adopted COVID-19 containment measures and travel
restrictions. France submits that on 22 March 2021, out of the 84 countries served
by Air France (with direct flights): (i) entry into 17 countries was either restricted
to residents/nationals or prohibited; and (ii) entry into 63 countries was accessible
to French citizens but only subject to (a) carrying out of a COVID-19 test (in 33
countries) or (b) compliance with a quarantine (in 30 countries)
5
. In addition,
several countries impose health formalities on crew members (tests, hotel
confinement, etc.).
(10) As a result, between 1 March 2020 and 14 February 2021 (included), and despite
a slight increase of air traffic during the summer months of 2020, France
experienced a 80% decrease in passenger numbers, as compared to 2019, as
shown in Figure 1.
Figure 1 – Evolution of airport passenger traffic in France, in 2019 and
2020/2021
Source: Airports Council International EUROPE (ACI EUROPE), 23 March 2021, available at
https://www.aci-europe.org/european-airports-passenger-traffic
(11) As regards Air France specifically, France further explained that, also as a result
of the COVID-19 outbreak, the company drastically reduced its offer in 2020.
This is shown in Figure 2, in terms of available seat kilometre (“ASK”)
(indicating the capacity in passenger seats times flown kilometres), and in Figure
3, in terms of numbers of flights.
Figure 2 – Evolution of Air France’s ASK, in 2019 and 2020
[…]
Source: France, internal information from Air France.
5
In addition, entry into three countries was subject to administrative formalities (such as a QR code, an
insurance proof or a form to fill in before departure). Only one country imposed no administrative
formality.
6
Figure 3 – Evolution of Air France’s number of flights, in 2019 and 2020
[…]
Source: France, internal information from Air France.
(12) France added that, for 2021 and the coming years, Air France expects that trend to
continue, with a decrease of ASKs of around […]% in 2021 and […]% in 2022,
as compared to 2019. By comparison, Air France’s business plan from December
2019 expected an increase of ASKs in the coming years. That difference is shown
in Table 1 and Figure 4.
Table 1 – Comparison of Air France’s business plans, in December 2019 and
December 2020
Capacité groupe AF
2019
2020
2021
2022
Business Plan
Decembre 2019
ASK (millions)
[150 000-
250 000]
[150 000-
250 000]
[150 000-
250 000]
[150 000-
250 000]
vs 2019
+[0-5]%
+[5-10]%
+[5-10]%
Business Plan
December 2020
ASK (millions)
[100 000-
200 000]
[0-100
000]
[100 000-
200 000]
[100 000-
200 000]
vs 2019
-[50-60]%
-[40-50]%
-[5-10]%
New plan vs old plan
-[50-60]%
-[40-50]%
-[10-20]%
Source: France, internal information from Air France.
Figure 4 – Evolution of Air France’s ASK, in 2019 and 2021 (estimates)
[…]
Source: France, internal information from Air France.
(13) France further explained that, on the routes still operated by Air France, the
average occupation rates of seats (also called load factor) drastically decreased, as
compared to 2019 levels. This is shown in Figure 5 for 2020. In 2021, the load
factor stayed at […]% in January, […]% in February and […]% in March.
Figure 5 – Average monthly load factor of Air France, in 2019 and 2020
[…]
Source: France, internal information from Air France.
(14) France submits that the COVID-19 crisis has severely damaged the financial
position of Air France and the Holding, as it is evident from internal documents
received from the French authorities. Air France and the Holding faced a
significant reduction and/or suspension of services, resulting in high operating
losses due to the measures taken by Member States and third countries to tackle
7
the COVID-19 pandemic
6
.
Based on the available information, Air France
incurred a net loss of EUR 5.5 billion for the year 2020 (compared to a net loss of
EUR 0.1 billion in the year 2019). This resulted in a negative equity position for
Air France of EUR 5.4 billion at the end of December 2020 (compared to a
positive equity position of 0.2 billion at the end of December 2019). The Holding
incurred a net loss of EUR 7.1 billion for the year 2020 (compared to a net profit
of EUR 0.3 billion in 2019). This resulted in a negative equity position for the
Holding of EUR 5.4 billion at the end of December 2020 (compared to a positive
equity position of EUR 2.3 billion at the end of December 2019).
(15) The French authorities further submit that, to mitigate as much as possible the
financial impact of the COVID-19 pandemic, Air France has undertaken several
operational, personnel and financial measures.
(a) Immediately after the start of the outbreak, in mid-March 2020, Air France
grounded its fleet of A380 and drastically reduced its activities. In the first
half of 2020, a total of 17 aircraft were permanently removed from Air
France’s fleets, for 6 new aircraft delivered.
(b) France explained that, in addition to a significant reduction of its activity
as of mid-March, Air France took several measures to further reduce its
net labour costs. In particular, Air France (i) used the partial activity
mechanism (activité partielle) as of mid-March 2020, (ii) froze general
and individual salary increases, (iii) suspended the negotiations on the
profit-sharing arrangements, and (iv) did not renew temporary contracts.
On 3 July 2020, Air France also announced measures to adjust its
workforce, through job cuts (around 6 560 out of 41 000 by the end of
2022) and a rescaling of its subsidiaries’ activities (including a reduction
of 1 020 jobs out of 2 420 by the end of 2020 for its subsidiary HOP!).
(c) On 30 October 2020, a further restructuring plan was announced,
including a restructuring of market operations, an optimisation of external
expenditure, a conversion of support functions, an adaptation of operation
and a modernisation of the fleet. A total reduction of 8 500 jobs by the end
of 2022 (for Air France and HOP!) is foreseen. Those measures are
expected to generate EUR 800 million in cost reduction by 2021, and EUR
1.2 billion by 2022.
(d) Following the above, Air France’s voluntary departure plan was
implemented as of January 2021. In March 2021, a first step was
completed with around 3200 applications received, of which 2300 were
accepted. These people will leave Air France in 2021. The second and
third stages will be conducted in the following weeks, leading to a total of
around 3600 voluntary departures from Air France.
2.2. Objective of the Measure
(16) As explained above, the COVID-19 outbreak has severely affected the financial
position of Air France and of the Holding. The Measure forms part of a broader
6
Figure 2 illustrates the decline in passenger traffic in the year 2020 for the Air France-KLM Group,
compared to the previous year.
8
plan in favour of Air France and of the Holding, which aims to ensure that
sufficient equity remains available to Air France and to the Holding and that the
disruptions caused by the COVID-19 outbreak do not undermine the viability of
Air France and the Holding.
(17) In particular, France explained, and the Commission already acknowledged
7
, that
Air France – and thus the Holding – plays an essential role in the French economy
and, more broadly, the European economy. That key role is expressed in the
following elements: (i) Air France’s weight in the economy and employment at
national and regional level; (ii) Air France’s contribution to territorial
connectivity in France and Europe; (iii) Air France’s special role in the context of
the COVID-19 crisis; and (iv) Air France’s key role in exiting the economic
crisis. For the same reasons, the Holding plays an essential role in the French and
European economies, as it is the head of this pan-European airline group and
contributes to providing capital and funding to its subsidiaries thereby enabling
them to operate.
(18) The Measure will be used to initiate the reconstitution of the equity position of the
Beneficiary, in particular Air France. It is a first step that is aimed at preparing a
broader recapitalisation, that could take place later on and […]. That first step will
cover only part of the capital losses suffered by the Beneficiary since the
beginning of the COVID-19 crisis, while significantly improving its viability.
France confirmed that, to the extent that the second recapitalisation step involves
State aid, it will be duly notified to the Commission.
(19) The need for a first stage of recapitalisation is a direct result of the significant
financial difficulties that negatively affect the possibility for Air France and the
Holding to find financing on debt or equity capital markets at affordable terms
and in the timeframe needed to avoid triggering insolvency proceedings. This is a
necessary condition to ensure the viability of the Beneficiary.
(20) Before the COVID-19 crisis, the sources of financing for the Beneficiary mainly
consisted of:
(a) long-term debt and operating leases secured by collateral in the form of
own assets (e.g. aircraft);
(b) short- to medium-term credit lines (e.g. revolving credit facilities, term
loans); and
(c) unsecured medium- to long-term financing from capital markets issued
mostly at the Holding level (e.g. public and private fixed-income
securities, equity capital).
(21) For the upcoming years, according to France, the implications of the impaired
equity position and the large reduction in free cash flows of the Beneficiary are
expected to be as follows:
7
Recitals 60 to 87 of the State Guarantee and Loan Decision.
9
(a) difficulty to obtain secured financing and operating leases to support its
operational needs;
8
(b) difficulty to obtain short- to medium-term credit lines (e.g. revolving
credit facilities, term loans)
9
and carry out short- and medium-term market
operations (e.g. currency exchange, hedging contracts)
10
; and
(c) difficulty to obtain unsecured debt
11
or equity capital
12
in sufficient
nominal amounts to restore its equity position, support additional
operational needs or cover losses in the years to come, or replenish a
minimal cash buffer position for working capital requirement needs.
(22) The impairment of the financial situation of the Beneficiary increased its capital
requirements, which according to the French authorities cannot be covered on the
capital market or by alternative financing options. Against that background,
France intends to support the Beneficiary with the Measure aimed at restoring its
balance sheet position and liquidity and to prevent a likely insolvency that could
trigger an uncontrolled and disorderly process and lead to the collapse of the
Beneficiary, with far-reaching effects on the entire aviation sector.
(23) In that respect, France explained that the existing horizontal measures already
adopted by France to mitigate the impact of the COVID-19 crisis are not
sufficient to cover the needs of Air France and the Holding. In particular, France
adopted horizontal schemes (such as the measures approved by the Commission
with its decisions in cases SA.56709
13
, SA.56823
14
, SA.56985
15
and SA.57695
16
)
8
According to France, Air France no longer […]. The Holding may only obtain such financing in the
form of […], yet at […].
9
According to France, the Beneficiary is not able to secure additional credit lines to cover for operating
activities and exceptional items as long as its capital structure is not improved.
10
According to France, as long as its capital structure is not improved, a number of banking partners
have […].
11
Since the Holding does not have a credit rating, it is part of a niche bond market for unrated issuers.
According to France, the total nominal amount of issuances in the bond market for unrated issuers was
approximately EUR 10 billion in 2020, compared to close to EUR 400 billion in the bond market for
issuers with an investment grade rating (i.e. bonds with a rating of BBB- and above according to
Standard & Poor’s and Fitch, or Baa3 and according to Moody’s). In addition, France argues that the
bond market for unrated issuers is prone to increased volatility in times of crisis. This is evidenced by
the market yield for a 5-year unsecured bond of EUR 750 million that was issued by the Holding
increasing from 1.875% in January 2020 up to 11% in October 2020.
12
According to France, the amount of equity capital to be replenished is particularly significant in the
short term. Due to the severe effects of the COVID-19 crisis on the aviation sector, it may not be likely
that […].
13
Decision of the Commission of 21 March 2020, SA.56709 (2020/N) – France – COVID-19: Plan de
sécurisation du financement des entreprises.
14
Decision of the Commission of 30 March 2020, SA.56823 (2020/N) – France – COVID-19 - French
Solidarity Fund - Scheme for enterprises in temporary difficulties due to COVID-19.
15
Decision of the Commission of 20 April 2020, SA.56985 (2020/N) – France – COVID-19 - Régime
cadre temporaire au soutien des entreprises dans la crise du Covid 19.
10
as well as specific measures for the air transport sector (such as the deferral of tax
payment approved by the Commission with its decision in case SA.56765
17
). Air
France also already received a State Guarantee and a State Loan, as approved in
the State Guarantee and Loan Decision. France explained that, while those
measures covered part of the Beneficiary’s liquidity needs, they were insufficient
to restore the balance sheet position to restore its solvency. Air France registered
a negative result of about EUR -5.5 billion, while the Holding registered a
negative result of EUR -7.1 billion in 2020. In turn, this resulted in negative
equity at 31 December 2020 of EUR -5.4 billion for Air France and EUR -5.4
billion for the Holding. The objective of the Measure is to remedy that situation
by restoring the equity of Air France and the Holding.
2.3. Nature and form of aid
(24) The Measure provides aid in the form of a recapitalisation for a total amount of
up to EUR 4 billion by means of two instruments: (i) conversion of the EUR 3
billion State Loan into a hybrid instrument (the “Hybrid Instrument”), and (ii)
State participation in the planned share capital increase up to EUR 1 billion (the
“Equity Participation”). France estimates that private participation in the share
capital increase will likely reduce the State participation in the share capital
increase to EUR 400-500 million. Those two instruments are further described in
section 2.8.
(25) France explains that the Measure is only the first step of a broader recapitalisation
plan. The objective of the Measure is to strengthen the financial profile of Air
France in view of a second recapitalisation step. That second recapitalisation step
could take place later on and […].
2.4. Legal basis
(26) The Hybrid Instrument will be based on a subscription agreement, to be signed
between the Holding and the French State.
(27) The Equity Participation will be based on article 102 of the law n° 2020-1721 of
29 December 2020 (“loi de finances pour 2021”). It will also be the subject of a
decision of the French ministry for economy and finance, based on article 24 of
Ordonnance n° 2014-948 of 29 August 2014 (“ordonnance relative à la
gouvernance et aux operations sur les capital des sociétés à participation
publique”).
2.5. Administration of the Measure
(28) The Measure will be granted by the State and administrated by the ‘Agence des
Participations de l’Etat’ (“APE”), the State agency in charge of France’s
shareholdings.
16
Decision of the Commission of 30 June 2020, SA.57695 (2020/N) – France – COVID-19: Régime
d'aides sous la forme de prêts publics subordonnés.
17
Decision of the Commission of 31 March 2020, SA.56765 (2020/N) – France – COVID-19: Moratoire
sur le paiement de taxes et redevances aéronautiques en faveur des entreprises de transport public
aérien sous licences d'exploitation délivrées par la France.
11
(29) France also provided the letter of the Beneficiary requesting the aid.
2.6. Budget and duration of the Measure
(30) The estimated budget of the Measure is ca. EUR 3.5 billion, including EUR 3
billion from the Hybrid Instrument and ca. EUR 400-500 million for the Equity
Participation. The budget can increase up to EUR 4 billion, with a State
contribution of up to EUR 1 billion for the Equity Participation.
(31) The Measure will be financed by the State budget.
(32) Aid will be granted under the Measure as from its approval until no later than 31
December 2021.
2.7. Beneficiary
(33) The final beneficiary of the Measure is Société Air France S.A. (Air France)
(which encompasses the Société Air France and its subsidiaries), as well as Air
France-KLM S.A. (the Holding) and the subsidiaries that it controls, with the
exception of Koninklijke Luchtvaart Maatschappij N.V. (“KLM”) and its
subsidiaries, as will be explained below (the “Beneficiary”). Figure 6 contains a
simplified group structure.
Figure 6 – Simplified group structure of the Air France – KLM group
Source: France, internal information from Air France.
2.7.1. Overview of the Beneficiary
(34) Air France is the main French airline company. It offers freight and passenger
services, including domestic, intra-Union and intercontinental flights. In 2019, its
turnover reached EUR 16.6 billion, which represented 1% of France’s GDP. It
has about 50 000 employees in France. In 2019, it operated about 1 200 daily
flights.
(35) Air France is part of the Air France – KLM group, a European-based global
aviation company. The Air France – KLM group is the 10
th
aviation company
worldwide, and the 4
th
European aviation company. In 2019, it transported about
50 million passengers.
12
(36) Air France is wholly owned by the Holding, which is the ultimate mother
company of the Air France – KLM group. The Holding also owns 99.7% of the
shares of KLM, which represent 93.48% of the economic rights and 49% of the
voting rights. The Holding also has 100% shares in the following subsidiaries
18
Air France-KLM International Mobility S.A.
19
, Blueteam V S.A.S.
20
, BigBlank
S.A.S.
21
, Air France-KLM Finance S.A.S.
22
, and Transavia Company S.A.S.
23
.
The Beneficiary encompasses Air France (and the subsidiaries that it controls), as
well as the Holding and the subsidiaries that it controls with the exception of
KLM and its subsidiaries.
(37) The Holding is not directly active on the aviation market. It coordinates the
activities of its subsidiaries and provides financial services (including […]). It
employs […] full-time equivalents, and relies on […] full-time equivalents that
are seconded from Air France ([…]) and KLM ([…]). It derives its revenues from
management fees, trademark fees and certain redistribution mechanisms (such as
for insurances). The consolidated own equity of the Holding amounted to EUR
2.3 billion on 31 December 2019.
(38) The French authorities explained that the Beneficiary was not in difficulty within
the meaning of the General Block Exemption Regulation (GBER)
24
on 31
December 2019.
2.7.2. Description of the mirror instruments mechanism
(39) France explained that the Measure will be formally granted to the Holding, and
then channelled through to Air France through mirror instruments, the objective
being to ensure that the financial and economic benefit from the Measure is fully
channelled to Air France, and does not benefit KLM (and its subsidiaries) in
particular.
(40) Specifically, with respect to the Hybrid Instrument, the State Loan will be
converted into a hybrid instrument. Simultaneously, the intra-group loan granted
by the Holding to Air France that was concluded at the same time as the State
Loan to channel the benefits of the State Loan to Air France (see recital 21 of the
18
It also has a non-controlling minority participation in […] ([…]%).
19
Air France-KLM International Mobility’s activities are […].
20
Blue Team V is […].
21
BigBlank is a start-up incubator developing projects in the travel, mobility, logistic and entertainment
sectors. It is being liquidated.
22
Air France-KLM Finance is […].
23
Transavia Company is active in passenger air transport and aircraft purchase/sale and renting.
Transavia’s activities are performed and Transavia’s assets and trademarks are owned by the Air
France and KLM subsidiaries, with respect to Transavia France and Transavia Netherlands
respectively.
24
As defined in Article 2(18) of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring
certain categories of aid compatible with the internal market in application of Articles 107 and 108 of
the Treaty, OJ L 187, 26.6.2014, p. 1.
13
State Guarantee and Loan Decision), will also be converted into a hybrid
instrument. The intra-group hybrid instrument will mirror all the features of the
hybrid instrument between the State and the Holding.
25
Any reimbursement of the
intra-group hybrid instrument will coincide with reimbursements to the State
under the hybrid instrument between the State and the Holding
26
. France
confirmed that, therefore, the cash derived from the Hybrid Instrument will – and
can – be used only by Air France.
(41) Likewise, with respect to the Equity Participation, new equity will first be
injected by the State into the Holding. That injection will be reflected by a
corresponding equity injection from the Holding into Air France.
2.7.3. Relationships between Air France and KLM
(42) France explained that the relationships between Air France and KLM (and, more
generally, between all subsidiaries of the Air France – KLM group) already take
place at normal market terms due to the way in which the Air France – KLM
group is structured and managed:
(a) Air France and KLM remain taxable in France and the Netherlands
respectively. Indeed, the Air France – KLM merger agreement signed in
2004 provides that […]. In addition, on 7 April 2004, France and the
Netherlands agreed on an amendment to the bilateral tax treaty between
France and The Netherlands (signed on 16 March 1973)
27
, in order to
ensure that KLM would remain taxable in the Netherlands
28
. In France and
in the Netherlands, the respective tax legislations dictate that the relation
between related parties must be governed by the arm’s length principle. It
means that all intragroup transactions must be conducted as if they were
concluded between unrelated parties. Consequently, transactions between
Air France and KLM must be conducted at normal market terms as
deviation from market terms could lead to tax optimisation contrary inter
alia to the merger agreement and the above-mentioned tax provisions.
(b) The governance structures within the Air France – KLM group have the
effect of directly incentivising the management of each of the subsidiaries
to negotiate the terms of its contracts with its sister companies in the best
possible manner for the interests of the subsidiary concerned. Indeed, the
25
This can be confirmed by comparing the term sheets of both instruments.
26
Nevertheless, the hybrid instrument between the State and the Holding may be reimbursed in advance
of the intra-group hybrid instrument.
27
Convention between the Government of the French Republic and the Government of the Kingdom of
the Netherlands for the avoidance of double taxation and the prevention of fiscal evasion with respect
to taxes on income and fortune.
28
In France that agreement was ratified by the law n° 2005-500 of 19 May 2005 (JO n° 116 of 20 May
2005), and published by a decree n° 2005-1077 of 23 August 2005 « portant publication de l'avenant à
la convention entre le Gouvernement de la République française et le Gouvernement du Royaume des
Pays-Bas tendant à éviter les doubles impositions et à prévenir l'évasion fiscale en matière d'impôts
sur le revenu et sur la fortune signée à Paris le 16 mars 1973, signé à La Haye le 7 avril 2004 » (JO
n° 203 of 1 September 2005)
14
Air France and the KLM subsidiaries are two sister companies that are
managed autonomously by distinct management teams. One of the key
criteria for assessing the performance of the managers of Air France and
KLM is […]. Therefore, the managers of Air France have no incentive to
accept unfavourable agreements with KLM (and vice-versa).
(43) France also provided an overview of the commercial arrangements involving
financial flows between, on the one hand, Air France and/or its subsidiaries, and,
on the other hand, KLM and/or its subsidiaries, as well as supporting documents.
For each category of commercial arrangements, France provided examples and
elements showing that they have been – and are being – carried out at normal
market terms:
(a) As regards commercial relationships such as services rendered, or goods
sold, by Air France (or its subsidiaries) to KLM (or its subsidiaries), or
vice-versa, France provided examples of existing agreements. For
example, France explained that […]. In addition, France explained that
[…].
(b) As regards cost sharing agreements and common activities performed in
common by Air France and KLM (or their subsidiaries), France explained
that costs are […]. France provided examples of cost sharing agreements
and provided elements indicating that they were carried out at normal
market terms.
2.7.4. Ring-fencing commitments
(44) Furthermore, in order to ensure that KLM (or its subsidiaries) does not actually
benefit from the aid deriving from the Measure, France has given the following
commitments (the “Ring-fencing Commitments”):
(a) Any financial or commercial relationships between Air France (or its
subsidiaries) and KLM (or its subsidiaries) will be based on market terms
and conditions. Therefore, Air France (or its subsidiaries) will not grant
preferential terms to KLM (or its subsidiaries) as compared to normal
market terms.
(b) Any financial or commercial relationships between the Holding (or its
subsidiaries other than Air France, KLM and their subsidiaries) and KLM
(or its subsidiaries) will be based on market terms and conditions.
Therefore, the Holding (or its subsidiaries other than Air France, KLM
and their subsidiaries) will not grant preferential terms to KLM (or its
subsidiaries) as compared to normal market terms.
(c) In case part of the aid resulting from the Measure is transferred (directly or
indirectly) to KLM (or its subsidiaries), France will recover such aid
amounts with interest from KLM and/or its subsidiaries.
(45) The Ring-fencing Commitments will be subject to the monitoring of a trustee (the
“Monitoring Trustee”). To that end, with respect to the relationships between the
Holding (or its subsidiaries other than Air France, KLM and their subsidiaries)
and KLM (or its subsidiaries) the Holding will:
15
(a) inform the Monitoring Trustee of any of its existing financing
arrangements, financial flows, and/or cooperation between the Holding (or
its subsidiaries other than Air France, KLM and their subsidiaries) and
KLM (and its subsidiaries);
(b) inform the Monitoring Trustee of any amendment to existing financing
arrangements, financial flows, and/or cooperation between the Holding (or
its subsidiaries other than Air France, KLM and their subsidiaries) and
KLM (or its subsidiaries) before they are implemented;
(c) inform the Monitoring Trustee of any new financing arrangements,
financial flows, and/or cooperation between the Holding (or its
subsidiaries other than Air France, KLM and their subsidiaries) and KLM
(or its subsidiaries) before they are implemented; and
(d) implement any adjustments and/or remedial measures required by the
Monitoring Trustee.
(46) As part of its monitoring activities, the Monitoring Trustee will have, in
particular, the following tasks.
(a) The Monitoring Trustee will review any existing financing arrangements,
financial flows, and/or cooperation between the Holding (or its
subsidiaries other than Air France, KLM and their subsidiaries) and KLM
(or its subsidiaries) with a view to confirming the adherence to market
term conditions. If needed, the Monitoring Trustee will propose any
adjustments and/or remedial measures required, that the Holding commits
to implement.
(b) The Monitoring Trustee will be kept informed of any new or modified
financing arrangements, financial flows, and/or existing cooperation
between the Holding (or its subsidiaries other than Air France, KLM and
their subsidiaries) and KLM (or its subsidiaries) before they are
implemented. The Monitoring Trustee will review the compliance with the
commitments. In case any proposed new or modified financing
arrangement, financial flow, and/or cooperation is not in line with market
terms, the Monitoring Trustee will suggest adjustment and remedial
measures, which the Holding commits to implement.
2.8. Basic elements of the Measure
(47) The approximately EUR 4 billion Measure consists of (i) an Equity Participation
(EUR 1 billion at maximum), and (ii) a conversion of a State loan into a Hybrid
Instrument (EUR 3 billion). It is subject to the Ring-fencing Commitments, the
Structural Commitments and the Behavioural Commitments (together the
“Commitments”).
(48) France committed that Air France and the Holding will appoint, subject to
Commission's approval, a Monitoring Trustee in charge of the overall task of
monitoring and ensuring, under Commission's instructions, compliance with the
Commitments. For that purpose, France will propose to the Commission for
approval, no later than one month from the date of this Decision, a list of one or
more persons whom it proposes to appoint as Monitoring Trustee. The
16
Monitoring Trustee will be appointed within one week of the Commission’s
approval in accordance with the mandate approved by the Commission and will
report to the Commission on a quarterly basis as to France, Air France and the
Holding’s compliance with the Commitments. The Monitoring Trustee will be
paid by Air France and the Holding.
(49) France committed that the Measure shall not be granted later than 31 December
2021 in line with point 48 of the Temporary Framework.
2.8.1. Equity participation under section 3.11 of the Temporary Framework
(50) The equity component of the Measure refers to the subscription of France to a
share capital increase
29
through the issuance of new ordinary shares of the
Holding (the “Share Capital Increase”) The Share Capital Increase will involve a
maximum volume of 214 million shares, representing 50% of existing
outstanding shares.
(51) To incentivise the participation of private investors, the Share Capital Increase
will be covered by underwriting commitments in which France will contribute up
to a maximum amount of EUR 1 billion. Also, France will ensure that its increase
in the equity capital of the Holding
30
does not result in an acquisition of a
controlling interest, de facto or de jure.
31
To meet this condition, France estimates
that it can subscribe to the Share Capital Increase up to a maximum of 130
million shares.
32
(52) The Share Capital Increase will be approved by the Board of Directors of the
Holding upon delegation of a General Meeting of its shareholders and will follow
the below procedure:
(a) Initially, the Share Capital Increase will be directed to the market via a
private placement with institutional investors. The subscription price for
the Share Capital Increase will be based on the orders placed by
institutional investors.
(b) Subsequently, the Share Capital Increase will be available to existing
shareholders including the State with a priority subscription period of
three trading days on a pro rata basis according to their shareholding.
Existing shareholders will also be able to subscribe to additional shares
through reducible orders.
(c) Within the same period of three trading days, the Share Capital Increase
will open up to new market investors.
29
Defined as the Equity Participation.
30
At 30 September 2020, France held 14.3% of the equity capital and 22.6% of the voting rights within
the Holding.
31
Within the meaning of Council Regulation No 139/2004 of 20 January 2004 on the control of
concentrations between undertakings, OJ L 24, 29.01.2004, p. 1.
32
This corresponds to the maximum amount of EUR 1 billion to which France will contribute as part of
the Share Capital Increase.
17
(d) Finally, if shares were not subscribed for by existing shareholders during
the priority subscription period, they could be allocated to institutional
investors that have placed orders during the private placement and to new
market investors.
(53) Pursuant to French law applicable to capital increases with a priority subscription
period
33
, the subscription price will be based on the average share price weighted
by the transaction volumes during the 3 days preceding the launch of the capital
increase, subject to a maximum discount of 10%.
(54) According to point 60 of the Temporary Framework, a capital injection by the
State, or an equivalent intervention, should be conducted at a price that does not
exceed the average share price of the beneficiary over the 15 days preceding the
request for the capital injection (the “Entry Price Limit”).
(55) France will ensure that the Equity Participation will comply with point 60 of the
Temporary Framework. The French authorities argued that points 59 and 62 of
the Temporary Framework allow for a certain degree of flexibility provided that
the proposed alternative mechanism overall leads to a similar outcome as foreseen
under point 60, in particular with regard to the incentive effects on the exit of the
State and the overall impact on the State’s remuneration.
(56) As the subscription price of the Equity Participation may exceed the Entry Price
Limit, France proposed an alternative approach to deal with any potential scenario
in which the actual subscription price would exceed the Entry Price Limit. In such
a case, the Beneficiary commits to pay to the State an additional remuneration
based on a comparison of the actual share capital injection and a counterfactual
scenario of strict compliance with point 60 (the “Required Compensation”). In
that setting, the Required Compensation would be equal to the difference between
the actual subscription price and the Entry Price Limit, multiplied by the number
of newly acquired shares. If the actual subscription price remains under the Entry
Price Limit, there will be no need for the Required Compensation.
(57) The nominal amount, subscription price and volume of new shares of the Equity
Participation will be determined at the end of the transaction once the Share
Capital Increase is closed. France commits that its maximum subscription amount
will not exceed EUR 1 billion, irrespective of the subscription price and the level
of participation of institutional investors, other shareholders and new market
investors.
(58) As indicated in recital (39), although the Measure will be formally granted to the
Holding, it will be fully channelled through to Air France via a mirror
instrument.
34
In that setting, France and the Beneficiary commit to inject the new
equity into the Holding, after which these funds will be transferred downstream
through a corresponding equity injection from the Holding into Air France.
33
Code de Commerce (Art. L. 225-136 and R. 225-119).
34
The objective is to ensure that the financial and economic benefit from the Measure is fully channelled
to Air France, and does not benefit to KLM in particular.
18
2.8.2. Hybrid instrument under section 3.11 of the Temporary Framework
(59) France will subscribe to the Hybrid Instrument by converting the State Loan
granted to Air France (via the Holding) for a maximum amount of EUR 3
billion.
35
The Hybrid Instrument will take the form of a deeply subordinated
capital security of perpetual nature.
36
That operation does not entail any additional
injection of new money by the State.
37
(60) The Hybrid Instrument will be treated as equity in the accounts of the Beneficiary
under International Financial Reporting Standards (“IFRS”) rules. In order to
allow for equity treatment under IFRS rules, the Hybrid Instrument is of perpetual
nature, and payment of coupons is non-mandatory and at the sole discretion of the
Beneficiary. Deferred coupons will accrue compound interests that will be added
to the initial nominal amount of the instrument until effective payment.
(61) The Hybrid Instrument will not be convertible into equity, and will be callable by
the Beneficiary at set dates each year at par value after a first period with no
possibility of early repayment. The Hybrid Instrument will be structured in three
tranches, each of EUR 1 billion, with first call dates at 4, 5 and 6 years in order to
spread the possibilities for repayment. Each tranche is repayable at par value at
the first call date (i.e. in 2025, 2026 and 2027 respectively for each of the
tranches) and each year thereafter.
(62) France commits that the remuneration mechanism, which establishes the coupon
rates on the Hybrid Instrument over time, will comply with the following two
principles:
(a) First, in view of the additional level of risk to which the State is exposed
compared to standard hybrid instruments
38
, France confirms that the
coupon rates will be at least equal to (i) the minimum level as set out in
point 66 of the Temporary Framework for the remuneration of instruments
issued by large companies, (ii) supplemented by an additional margin of
90 basis points per year.
(b) Second, France relies on an alternative approach for compliance with
point 60 of the Temporary Framework, by setting the coupon rates on the
Hybrid Instrument above the minimum margin as defined in point (a) to
offer the State additional remuneration if the actual subscription price of
35
France estimates that private participation in the share capital injection will likely reduce the State
participation in the share capital injection to EUR 400-500 million.
36
In case of insolvency, the Hybrid Instrument is senior to subscribed capital and to capital reserves.
37
In line with point 48 of the Temporary Framework, the conversion of the State loan in the Hybrid
Instrument will not take place later than 31 December 2021.
38
The Commission notes that the Hybrid Instrument will be treated as equity under IFRS rules, as it
exhibits many equity-like characteristics, resulting in a higher risk for investors. Therefore, the higher
remuneration above the minimum required under point 66 of the Temporary Framework ([…] bps)
takes into account the additional risk borne by the State due to the fact that the Hybrid Instrument is
close to equity in terms of seniority, is not convertible into shares, bears coupons only payable at the
Beneficiary’s discretion, and is perpetual in duration.
19
the Share Capital Increase, to which the State plans to subscribe, exceeds
the Entry price limit. In such a case, the Beneficiary commits to adjust the
remuneration profile on the Hybrid Instrument
39
to ensure that the present
value of the resulting additional remuneration
40
will be equal to or exceed
the Required Compensation (see recital (56)).
To accommodate that
alternative approach, the issuance of the Hybrid Instrument establishing
the additional remuneration will only take place following the planned
Share Capital Increase and the determination of the subscription price (see
recital (52)(a)). In addition, France commits to provide this additional
remuneration through adjusting the remuneration profile on the Hybrid
Instrument from the moment of its issuance until the first call dates that
apply to each of its tranches, thereby ensuring that the present value of this
additional remuneration will be sufficient. Finally, France commits that
the Beneficiary will make a cash payment to the State to ensure
compliance with point 60 of the Temporary Framework in case the
additional remuneration would not be sufficient ex post (for instance, in
case of an early repayment of the Hybrid Instrument). That alternative
approach is referred to as the Remuneration Commitments and its correct
functioning and compliance will be monitored by the Monitoring Trustee.
Until the end of the Mandate, the Monitoring Trustee will monitor the
accrued additional remuneration to the State on a yearly basis, and instruct
a payment in cash in case of insufficient compensation.
41
In the latter case,
the Beneficiary will be required to pay the difference in cash together with
accrued compound interest (within three months of the request).
(63) Therefore, France submits that the minimum remuneration of the Hybrid
Instrument takes into account the two principles (see recitals (62)(a) and (62)(b))
to comply with the Temporary Framework, as described in Table 2.
39
The Beneficiary will provide additional remuneration on the Hybrid Instrument by increasing its
coupon rates in certain years.
40
The present value is calculated by discounting the additional remuneration over time at the minimum
coupon rates on the Hybrid Instrument (as set out in Table 2).
41
At the latest when the Hybrid Instrument will be fully redeemed.
20
Table 2 – Remuneration of Hybrid Instrument: 1-year EURIBOR + margin
1
st
year
2
nd
and
3
th
year
4
th
and
5
th
year
6
th
and
7
th
year
8
th
year
and after
Temporary Framework:
Minimum margin for large
enterprises
250bps
350bps
500bps
700bps
950bps
Additional margin for non-
standard instruments
90 bps
90 bps
90 bps
90 bps
90 bps
Minimum margin for the Hybrid
Instrument
340bps
440bps
590bps
790bps
1040bps
Note: The coupon rates in certain years may increase above the minimum margin for the Hybrid
Instrument as part of the alternative approach for compliance of the Share Capital Increase with
point 60 of the Temporary Framework.
Source: France, internal information from Air France.
(64) As indicated in recital (39), although the Measure will be formally granted to the
Holding, it will be fully channelled through to Air France via mirror
instruments.
42
In that setting, France and the Beneficiary commit to
simultaneously convert the State Loan to a hybrid instrument both at the level of
the Holding and Air France. It is specified that both hybrid instruments will be
issued at the same terms and conditions
43
, and that any reimbursement of the
hybrid instrument at the level of Air France will coincide with a corresponding
reimbursement to the State under the hybrid instrument at the Holding level.
44
2.8.3. Step-up mechanism
(65) In line with points 61 and 62 of the Temporary Framework, France will introduce
a step-up mechanism in order to increase the remuneration of the State and
incentivise the Beneficiary to buy back the Equity Participation.
(66) France will receive a remuneration equivalent to an additional 10% shareholding
after 4 and 6 years from the State recapitalisation if, at those dates, 40% and
100% of the Equity Participation respectively, have not been redeemed by the
Beneficiary or sold by the State. That step-up remuneration will be equal to the
market value of the shares that are necessary to achieve a 10% increase of the
COVID-19 capital injection that is still outstanding at years 4 and 6 after the State
recapitalisation.
42
The objective is to ensure that the financial and economic benefit from the Measure is fully channelled
to Air France, and does not benefit to KLM in particular.
43
France relies on an alternative approach for compliance with point 60 of the Temporary Framework,
by setting the coupon rates on the Hybrid Instrument above the minimum margin to offer the State
additional remuneration if needed. In that case, this adjustment will apply to the hybrid instrument at
the level of the Holding as well as that at the level of Air France.
44
Nevertheless, the hybrid instrument between the State and the Holding may be reimbursed in advance
of the intra-group hybrid instrument.
21
(67) The compensation for France will be an amount denominated in EUR
corresponding to a 10% increase in the State’s COVID-19 shareholding for each
of the step-up steps. The compensation will be paid either in additional shares, a
corresponding amount of cash or in the form of a hybrid instrument for the same
value in line with market conditions (the “Step-up Hybrid”) at the discretion of
the Beneficiary at the date of triggering of the step-up mechanism.
(68) The Step-up Hybrid will have the same characteristics as the Hybrid Instrument
as part of the Measure (e.g. perpetual maturity, deferrable coupons at the
discretion of the issuer, deeply subordinated), except for the remuneration. To
ensure that the nominal value of the Step-up Hybrid is equivalent to the
alternative step-up payment options in the form of cash or additional shares, the
remuneration of the Step-up Hybrid will be set in line with the market conditions
at the time of issuance for similar instruments (in terms of maturity, level of
subordination, conditions on coupon payments, etc.) and for issuers with a similar
credit quality as the Beneficiary. France commits to inform the Commission on
the level of the Step-up Hybrid remuneration and the methodology used for its
determination in view of obtaining approval by the Commission.
(69) To incentivise the Beneficiary to pay the coupons on the Step-up Hybrid and
ensure the State receives adequate step-up remuneration, France commits to
comply with the following conditions: (1) the Beneficiary will make a coupon
payment on the Step-up Hybrid in case it pays a dividend or makes a non-
mandatory coupon payment on another hybrid instrument
45
; (2) the behavioural
requirements laid down in section 3.11.6 of the Temporary Framework will
continue to apply until the nominal amount of the Step-up Hybrid Instrument and
the accrued unpaid coupons (including compound interest) have been fully repaid
by the company irrespective of a potential sale, unless the Step-up Hybrid is sold
at par value or above including accrued unpaid coupons (including compound
interest).
2.8.4. Structural Commitments
(70) The Measure is subject to the following Structural Commitments, which are set
out in full in the Annex to this Decision.
(71) France committed that Air France makes available to a remedy taker up to 18
daily slots at Paris Orly airport (ORY) by way of code-sharing
46
and to
definitively transfer the slots (without transferring staff or else)
47
to the remedy
taker on the later of: (i) the date on which the applicable legal framework allows
the definitive transfer of slots (without any transfer of staff or else), and (ii) the
45
This condition would apply after the governance conditions under point 77 of the Temporary
Framework were to be lifted after the COVID-19 recapitalisation measures have been fully redeemed.
46
See notably recital (84) for the specific conditions applicable to code-sharing. Under the Structural
Commitments, code-sharing is used as a provisional solution until the slots are definitively transferred
from Air France to the remedy taker.
47
The references in this Decision to the definitive transfer of slots (without transferring staff or else)
refer to the operation by which only slots would be divested from Air France to the remedy taker. No
other asset or right held by Air France, such as employment contracts (staff), owned or leased aircraft,
ground-handling contracts, other supply contracts, etc. would be divested to the remedy taker.
22
expiry date of the period during which compliance of the remedy taker with the
requirement to maintain a base at Orly airport is controlled.
(72) France’s commitment to have Air France enter into a code-share agreement as
described in recital (71) applies from the date of adoption of this Decision and
expires four years after the first cut-off date for the call for proposals
implementing the code-sharing procedure.
48
This means that no call for proposals
will take place after four years from the first cut-off date. For the avoidance of
doubt, the expiry of France’s commitment will not affect the validity of the code-
share agreement already concluded. As long as such an agreement continues to
apply beyond the expiry of France’s commitment, the provisions of the Structural
Commitments that concern the code-share agreement (including Air France’s
obligation to definitively transfer the slots) also continue to apply.
(73) To be eligible, a potential remedy taker must:
(a) be an air carrier holding a valid operating licence issued by an EU/EEA
Member State;
(b) be independent of Air France-KLM and unconnected with Air France-
KLM at the time of signing of the code-share agreement;
(c) not be subject to competition remedies having received a COVID-19
recapitalisation instrument of more than EUR 250 million;
(d) commit to comply with the applicable EU and national labour laws, as
interpreted, in particular and as relevant, by the EU Courts (see e.g.
Nogueira, Joined Cases C-168/16 and C-169/16
49
); and
(e) have or establish an operating base at ORY in compliance with Article R.
330-2-1 of the French Civil Aviation Code, including all the aircraft using
the remedy slots, except aircraft that the remedy taker cannot, for
operational reasons, base using the remedy slots (the burden of proof rests
on the remedy taker).
50
A base implies that the said aircraft stay overnight
at the airport and are used to operate several routes from that airport, and
that crews working on the said aircraft habitually start and end their
working days at ORY. Potential remedy takers indicate in their proposals
the number of aircraft to be based at ORY using the remedy slots.
51
(74) The Monitoring Trustee will control compliance of the remedy taker with the
obligation to maintain a base at ORY, as described in recital (73)(e), for a period
48
As further explained in recital (76), the remedy taker will be approved following a call for proposals
published by the Monitoring Trustee, who will regularly set deadlines for the submission of proposals
(cut-off dates).
49
EU:C:2017:688.
50
This means that potential remedy takers explain in their proposals why, from an operational point of
view, the remedy slots that they request for inbound flying cannot be used for based operations.
51
See recital (263) for the detailed information on the number of aircraft based to use the remedy slots to
be provided by potential remedy takers in their proposals (average and range).
23
of four years from the first cut-off date of the call for proposals implementing the
code-sharing procedure.
(75) If the Commission finds that the remedy taker breaches its obligation to maintain
a base at ORY and that the situation is not exceptionally justified by
circumstances significantly impacting market conditions, and if the Monitoring
Trustee finds that the breach has not been remedied after a three-month remedial
period, Air France has the right to terminate the code-share agreement. In such a
case, a new code-sharing procedure for all the remedy slots will be initiated, in
order to designate a new remedy taker (the former remedy taker may not
participate in the new procedure). At the end of the new procedure, if a new
remedy taker is designated, Air France will enter into a new code-share
agreement with the remedy taker, providing for the definitive transfer of slots
(without any transfer of staff or else) to the new remedy taker on the later of: (i)
the date on which the applicable legal framework allows the definitive transfer of
slots (without any transfer of staff or else), and (ii) the expiry date of the period
during which compliance of the remedy taker with the requirement to maintain a
base at ORY is controlled.
(76) The remedy taker will be approved by the Commission following a transparent
and non-discriminatory procedure. The corresponding call for proposals will be
open continuously as from the date of its publication by the Monitoring Trustee,
who will regularly set cut-off dates for the submission of proposals. The
Commission, advised by the Monitoring Trustee, will evaluate the proposals.
(77) The Commission may reject the proposals if they are not credible from an
economic or operational point of view or in terms of compliance with Union
competition law.
(78) In case of competing proposals, the Commission will first give priority to
proposals submitted by potential remedy takers that already operate a base at
ORY, and then that offer in particular the greatest number of destinations served
(connectivity) and the largest capacity deployed at the airport (in number of seats
for the IATA Summer and Winter Seasons).
(79) If the Commission gives the same evaluation to several proposals (tied proposals),
it will give preference to the proposal best ranked by Air France, which may use
any criteria of its choice, provided that they are transparent, such as the level of
State aid received by the potential remedy takers or their compliance with labour
standards.
(80) The slots made available by Air France to the remedy taker at the time of signing
of the code-share agreement will correspond to the slot times requested by the
remedy taker within +/- 10 minutes for short-haul flights and within +/- 30
minutes for long-haul flights. By exception, Air France will not be obliged to
make available more than one departure slot between 6:00 and 7:00 (local time)
and more than one arrival slot between 22:00 and 23:30 (local time) per aircraft
based by the remedy taker to use the remedy slots, up to two departure slots
between 6:00 and 7:00 (local time) and two arrival slots between 22:00 and 23:30
24
(local time).
52
For those slots, Air France may not offer slots after 7:00 or before
22:00 (local time) if the slot times requested by the remedy taker are before 7:00
or after 22:00 (local time).
(81) The slots made available by Air France to the remedy taker at the time of signing
of the code-share agreement will be such as to allow the aircraft rotations planned
by the remedy taker on the basis of the requested slot times. If the remedy taker
considers that the slots offered by Air France do not allow the planned aircraft
rotations, the remedy taker may inform the Monitoring Trustee accordingly, who
will provide a reasoned opinion on that matter to the Commission. If the
Commission confirms that the slots offered by Air France do not allow the
aircraft rotations planned by the remedy taker, Air France will offer to the remedy
taker and to the Commission alternative slots, to be approved by the Commission.
If the Commission does not approve the alternative slots, Air France will make
available the slots as requested by the remedy taker. This will nevertheless not
result in exceeding the ceilings referred to in recital (80) for the number of slots
that Air France is obliged to make available between 6:00 and 7:00 (local time)
and between 22:00 and 23:30 (local time).
(82) Air France will make slots available to the remedy taker for free, under the
control of the Monitoring Trustee.
(83) Air France will not be entitled to any claim for compensation, even if the slots are
not used in compliance with the Slot Regulation
53
, notably with the “use-it-or-
lose-it” rule
54
.
(84) Air France will have no right regarding the flight capacity deployed by the
remedy taker. The remedy taker will have full commercial and operational
independence, and Air France will have no power of commercial or operational
control over the operations of the remedy taker (e.g. choice of destinations, types
of aircraft, fares, etc.).
(85) Air France will make best efforts to support the operations of the remedy taker,
including Air France obtaining, as relevant, the traffic rights (without prejudice to
the traffic rights that the remedy taker may have to obtain), if needed for the
operation of certain routes planned by the remedy taker, as well as slot retiming
and/or related changes (e.g. conversion of departure/arrival slots, changes of
destinations, of aircraft, etc.).
52
This means that Air France will make available one departure slot between 6:00 and 7:00 (local time)
and one arrival slot between 22:00 and 23:30 (local time) to a remedy taker basing one aircraft at ORY
to use the remedy slots, and two departure slots between 6:00 and 7:00 (local time) and two arrival
slots between 22:00 and 23:30 (local time) to a remedy taker basing two or more aircraft at ORY to
use the remedy slots.
53
Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at
Community airports (OJ L 14, 22.1.1993, p. 1).
54
Under Article 8(2) of the Slot Regulation, the general principle regarding slot allocation is that an air
carrier having operated its particular slot series for at least 80% during the summer or winter
scheduling period is entitled to the same slot series in the equivalent scheduling period of the
following year (the “grandfather rights”). Consequently, slot series which are not sufficiently used by
air carriers are returned to the slot pool for reallocation.
25
(86) The code-share agreement will be renewed tacitly until the definitive transfer of
the slots (without transfer of staff or else) to the remedy taker. Without prejudice
to the exception described in the following sentence, only the remedy taker may
decide to terminate the code-share agreement, without any financial penalty. Air
France has no right to terminate unilaterally the code-share agreement (including
in case of change of control over the remedy taker or commercial partnership
entered into by the latter with third party carriers), except in case of breach by the
remedy taker of its obligation to maintain a base at ORY.
55
(87) In case of early termination of the code-share agreement by the remedy taker, Air
France will return the corresponding slots to the slot pool and will not request the
returned slots through the general slot allocation procedure foreseen by the Slot
Regulation. For the avoidance of doubt, this commitment will not apply to
remedy slots that the remedy taker would return to the slot pool after the
definitive transfer of the remedy slots to the remedy taker.
2.8.5. Behavioural Commitments
(88) France undertakes to implement, and to have the Beneficiary comply with, the
following behavioural commitments, described in recitals (89) to (102) (the
“Behavioural Commitments”), subject to the monitoring of the Monitoring
Trustee.
(89) France commits that the Measure will contain a prohibition for the Beneficiary to
engage in aggressive commercial expansion financed by State aid and excessive
risk taking.
(90) France commits that the Beneficiary will not advertise the Measure for
commercial purposes.
(91) France commits that, as long as at least 75% of the Measure has not been,
redeemed, the Beneficiary will be prevented from acquiring a more than 10%
stake in competitors or other operators in the same line of business, including
upstream and downstream operations. France also committed that the Beneficiary
will seek and wait for the prior authorisation of the Commission before acquiring
a stake of more than 10% in operators in the same line of business, including
upstream and downstream operations, if the acquisition is necessary to maintain
their viability.
(92) France commits that State aid resulting from the Measure will not be used to
cross-subsidise economic activities of integrated undertakings that were in
economic difficulties already on 31 December 2019, and that a clear account
separation will be put in place in integrated companies to ensure that the Measure
does not benefit those activities.
(93) France commits that, as long as the Measure has not been fully redeemed, the
Beneficiary cannot make dividend payments, nor non-mandatory coupon
payments, nor buy back shares, other than in relation to the State.
55
The procedure for the enforcement of the obligation of the beneficiary to maintain a base at ORY is
described in recital (75).
26
(94) France commits that, as long as at least 75% of the Measure has not been
redeemed:
(a) the remuneration of each member of the management of the main
companies of the Beneficiary
56
(i.e. Air France-KLM S.A., Air France
S.A. and Transavia France S.A.S.)
57
must not go beyond the fixed part of
his/her remuneration on 31 December 2019. For persons becoming
members of the management on or after the recapitalisation, the applicable
limit is the fixed remuneration of the members of the management with
the same level of responsibility on 31 December 2019;
(b) under no circumstances, may bonuses or other variable or comparable
remuneration elements be paid to the management of the main companies
of the Beneficiary (as in the preceding subparagraph)).
(95) France commits to receive from the Beneficiary, and endorse, a credible exit
strategy in line with points 79 to 81 of the Temporary Framework, within 12
months after the aid is granted, unless the State’s intervention is reduced below
the level of 25% of equity by that deadline.
(96) As will be detailed in recitals (107) and (108), France and the Beneficiary commit
to comply with the monitoring and publication requirements of points 82 to 85 of
the Temporary Framework.
(97) France further commits that the Beneficiary will pay the Required Compensation
on the Equity Participation if required, based on the mechanism described in
recitals (56) and (62)(b).
(98) France commits to introduce a step-up mechanism for the Equity Participation
along the lines described in recitals (65) to (69).
(99) To allow for the exit of the State from its Equity Participation, France commits
that the Beneficiary would rely on the two options as defined by the Temporary
Framework, namely through a buy-back of the newly acquired shares as defined
by point 63 or through alternative exit mechanisms as defined by points 64, 64bis
and 64ter.
(100) France also commits that the remuneration mechanism of the Hybrid Instrument
will comply with the two principles described in recitals (62) and (63) and in
Table 2.
(101) To ensure that the coupons on the Hybrid Instrument are ultimately paid,
especially given that the Beneficiary has the option not to do so, the Hybrid
Instrument needs to be redeemed in order for the behavioural commitments
imposed on the Beneficiary under this Decision to end, as will be detailed in
recitals (181) and (182).
56
It will apply in any event to the management of all other companies of the Air France – KLM group
(except for KLM and its subsidiaries) that is also part of the management of Air France-KLM S.A.,
Air France S.A. et Transavia France S.A.S.
57
This part of Beneficiary accounts for more than [90-100]% of the Beneficiary’s annual turnover.
27
(102) France commits that the Measure will not be granted later than 31 December
2021 in line with point 48 of the Temporary Framework.
2.9. Cumulation
(103) France confirmed that the aid granted under the Measure may be cumulated with
aid under de minimis Regulations
58
or the GBER
59
provided the provisions and
cumulation rules of those Regulations are respected.
(104) France confirmed that the aid granted under the Measure may be cumulated with
aid granted under other measures approved by the Commission under other
sections of the Temporary Framework provided the provisions in those specific
sections are respected.
2.10. Monitoring and reporting.
(105) As explained at recital (48), France commits that Air France and the Holding will
appoint, subject to Commission's approval, a Monitoring Trustee in charge of the
overall task of monitoring and ensuring, under Commission's instructions,
compliance with the Commitments, covering the Ring-fencing Commitments, the
Behavioural Commitments and the Structural Commitments.
(106) France confirmed that it will respect the monitoring and reporting obligations laid
down in section 4 of the Temporary Framework. In particular, it commits that:
(a) it will publish relevant information on the recapitalisation granted to the
Beneficiary on the comprehensive State aid website or Commission’s IT
tool within three months from the moment of granting;
60
(b) it will submit annual reports to the Commission, in line with point 89 of
the Temporary Framework; and
(c) it will ensure that detailed records regarding the granting of aid under the
Measure (including all information necessary to establish that the
necessary conditions have been observed) are maintained for ten years
upon granting of the aid and are provided to the Commission upon
request, in line with point 91 of the Temporary Framework.
(107) France also confirmed that it will ensure that:
(a) the Beneficiary will submit reports to France based on the progress in the
implementation of the repayment schedule and compliance with the
58
Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107
and 108 of the Treaty on the Functioning of the European Union to de minimis aid (OJ L 352,
24.12.2013, p.1), Commission Regulation (EU) No 360/2012 of 25 April 2012 on the application of
Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid
granted to undertakings providing services of general economic interest (OJ L 114, 26.4.2012, p. 8).
59
Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid
compatible with the internal market in application of Articles 107 and 108 of the Treaty, OJ L 187,
26.6.2014, p. 1.
60
Referring to information required in Annex III to Commission Regulation (EU) No 651/2014.
28
conditions of section 3.11.6 of the Temporary Framework within 12
months of the schedule’s presentation, and thereafter periodically every 12
months;
(b) as long as the Measure has not been fully redeemed, the Beneficiary will,
within 12 months from the date of the granting of the aid and thereafter
periodically every 12 months, publish information on the use of the aid
received (including information on how the Beneficiary’s use of the aid
received supports its activities in line with EU objectives and national
obligations linked to the green and digital transformation, including the
EU objective of climate neutrality by 2050);
(108) Finally, France confirmed that:
(a) it will provide annual reports to the Commission on the implementation of
the repayment schedule and compliance with the conditions in section
3.11.6 and point 54 of the Temporary Framework; and
(b) it will notify a restructuring plan in line with point 85 of the Temporary
Framework if, within 6 years after the recapitalisation, France’s
intervention has not been reduced below 15% of the Holding’s equity.
3. ASSESSMENT
3.1. Lawfulness of the Measure
(109) By notifying the Measure before putting it into effect, the French authorities have
respected their obligations under Article 108(3) TFEU.
3.2. Existence of State aid
(110) For a measure to be categorised as aid within the meaning of Article 107(1)
TFEU, all the conditions set out in that provision must be fulfilled. First, the
measure must be imputable to the State and financed through State resources.
Second, it must confer an advantage on its recipients. Third, that advantage must
be selective in nature. Fourth, the measure must distort or threaten to distort
competition and affect trade between Member States.
(111) The Measure is imputable to the State, since it is granted by the State, it is
administered by APE, and it is based on an agreement to be signed by the State
and on French laws, as described in recitals (26) and (27). It is financed through
State resources, since it is financed by public funds (see recital (31)).
(112) The Measure confers an advantage on its Beneficiary (Air France and the Holding
and their subsidiaries, with the exception of KLM and its subsidiaries), in the
form of a recapitalisation. The Measure thus relieves the Beneficiary of costs
which it would have had to bear under normal market conditions.
(113) In this respect, for the following reasons, and based on the mechanisms and
commitments described in section 2.7, the Commission concludes that the aid
beneficiaries of the Measure are Air France and the Holding, and their
subsidiaries, with the exception of KLM and its subsidiaries.
29
(a) Air France (and the subsidiaries that it controls) will benefit from the aid,
even though the funds transit through the Holding, as a result of the mirror
instruments described at recitals (39) to (41)
61
. Air France will thus
receive a direct advantage from the Measure, and must be regarded as the
recipient of the aid.
(b) The Holding (and the subsidiaries that it controls) will also receive an
advantage from the Measure. This results from a combination of two
factors. First, the Holding’s own equity will be increased as a result of the
Measure. Second, the Holding has no commercial activity on its own.
Hence, its financial situation depends mostly on those of its subsidiaries.
In this respect, Air France is the main subsidiary of the Holding. As a
result of the State Loan and State Guarantee, the Holding had increased its
exposure to Air France’s financial situation. Specifically, the State Loan
and State Guarantee result in a debt from the Holding to the State of EUR
7 billion. While the Holding has a similar credit from Air France, that
credit would be lost in case of Air France’s bankruptcy. Hence, the non-
consolidated own equity of the Holding
62
would be insufficient to cover
losses resulting from a hypothetical bankruptcy of Air France (in
particular the EUR 7 billion losses linked to the State Loan and State
Guarantee). As a result, by guaranteeing the viability of Air France (which
is the aim of the Measure as explained in recital (16)), the Measure also
guarantees the viability of the Holding.
(c) Air France and the Holding have commercial and financial relationships
with the other strategic subsidiary of the Holding, KLM, which is active in
the same market as Air France and has coinciding air-transport interests.
There is some degree of integration between the Holding, Air France and
KLM, concerning mostly mutualisation of costs, strategic alignments and
access to finance
63
. There could thus be a risk that the aid resulting from
the Measure would be transferred (in part) to KLM from Air France or the
Holding, for example via financial arrangements or via commercial
cooperation agreements at advantageous terms. However, this is
effectively prevented, for several reasons, with the result that KLM (and
its subsidiaries) is not a beneficiary of the Measure:
– First, the Commission considers that the mirror instruments
described at recitals (39) to (41) will ensure that the cash derived
from the Hybrid Instrument and the Equity Participation is fully
channelled to Air France, and does not benefit KLM.
61
See by analogy, judgment of 3 July 2003, Belgium v Commission, C-457/00, EU:C:2003:387,
paragraphs 55-60.
62
Based on the available evidence, the non-consolidated own equity of the Holding amounted to EUR
4.6 billion at the end of December 2019, whereas the consolidated own equity of the Holding was
equal to EUR 2.3 billion at that time.
63
However, a bankruptcy of Air France and/or the Holding would not necessarily lead to a bankruptcy of
KLM. KLM has limited financial exposure to Air France and the Holding and it has its own capital
and cash flows. A bankruptcy of Air France and the Holding would merely lead to a change in KLM’s
shareholders as its shares would be granted to the creditors of the Holding.
30
– Second, the Commission considers that the corporate and
governance structure of the Air France – KLM group as described
at recital (42) will also prevent the risk of aid spill-over from Air
France to KLM. In that regard, the Commission considers that the
explanations and examples provided by France (see recital (43))
demonstrate that the commercial relationships between Air France
and KLM take place at normal market terms.
– Finally, the Commission considers that the Ring-fencing
Commitments given by France and detailed in recital (44)
effectively ensure that the aid derived from the Measure will not be
transferred to KLM. The Measure does not bring into question that
KLM remains an independent company from Air France (and other
subsidiaries of the Holding), both legally and financially. The
Ring-fencing Commitments ensure that KLM will bears its own
costs, until the Measure is fully redeemed. This will further be
verified by an independent Monitoring Trustee (see recital (48)).
As a result, KLM will not receive any advantages from the
Measure that go beyond mere secondary economic effects
64
.
(114) The advantage granted by the Measure is selective, since it is awarded only to a
limited number of undertakings, namely Air France, the Holding and their
subsidiaries other than KLM and its subsidiaries. The Measure, therefore, favours
the Beneficiary over other airlines or undertakings active in sectors outside
aviation.
(115) The Measure is liable to distort competition, since it strengthens the competitive
position of the Beneficiary. It also affects trade between Member States, since the
Beneficiary is active in sectors in which intra-Union trade exists.
(116) In view of the above, the Commission concludes that the Measure constitutes aid
within the meaning of Article 107(1) TFEU. The French authorities do not contest
that conclusion.
3.3. Compatibility
(117) Since the Measure involves aid within the meaning of Article 107(1) TFEU, it is
necessary to consider whether that Measure is compatible with the internal
market.
(118) Pursuant to Article 107(3)(b) TFEU the Commission may declare compatible
with the internal market aid “to remedy a serious disturbance in the economy of a
Member State”.
(119) By adopting the Temporary Framework on 19 March 2020, the Commission
acknowledged (in section 2) that, “the COVID-19 outbreak affects all Member
States and that the containment measures taken by Member States impact
64
See by analogy the judgment of 25 June 1998, British Airways and Others and British Midland
Airways v Commission, T-371/94 and T-394/94, EU:T:1998:140, paragraphs 313-323; see also Notice
on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the
European Union (OJ C 262, 19.7.2016, p. 1), points 66-68 and 115-116 and case-law quoted.
31
undertakings”. The Commission concluded that “State aid is justified and can be
declared compatible with the internal market on the basis of Article 107(3)(b)
TFEU, for a limited period, to remedy the liquidity shortage faced by
undertakings and ensure that the disruptions caused by the COVID-19 outbreak
do not undermine their viability”.
(120) Section 3.11 of the Temporary Framework deals with recapitalisation measures. It
sets out the criteria under which Member States may provide public support in the
form of equity and/or hybrid capital instruments to undertakings facing financial
difficulties due to the COVID-19 outbreak, aiming to ensure that the disruption of
the economy does not result in the unnecessary exit from the market of
undertakings that were viable before that outbreak.
3.3.1. Applicability
(121) Point 46 of the Temporary Framework states that: “The following conditions shall
apply to recapitalisation schemes and individual recapitalisation measures of
Member States for non-financial undertakings (collectively referred to as
“COVID-19 recapitalisation” measures) under this Communication, which are
not covered by section 3.1 of this Communication. They apply to COVID-19
recapitalisation measures for large undertakings and SMEs”. Point 47 adds that:
“The following conditions shall also apply to subordinated debt instruments that
exceed both of the ceilings referred to in point 27bis (i) and (ii) in section 3.3 of
this Communication”.
(122) The Measure aims at strengthening the equity of the Beneficiary, in particular of
Air France, and its access to liquidity at a time when the normal functioning of
credit markets is severely disturbed by the COVID-19 outbreak, which is
affecting the wider economy and leading to severe disturbances of the real
economy of Member States.
(123) The Measure amounts to a recapitalisation, where France plans to subscribe to a
share capital increase of new ordinary shares of the Holding (EUR 1 billion at
maximum) and convert an existing State loan into a Hybrid Instrument (EUR 3
billion).
(124) The Commission observes that the Measure concerns the recapitalisation of a
large non-financial undertaking (the Holding and then Air France) as a result of
the COVID-19 outbreak. Hence, the Measure can be qualified as a COVID-19
recapitalisation to remedy a serious disturbance in the economy of the Member
State.
(125) Point 48 of the Temporary Framework states that COVID-19 recapitalisation
measures may not be granted later than 31 December 2021. The Commission
notes that France committed to grant the Measure no later than 31 December
2021 (see recital (32)).
(126) Therefore, in the following sections, the Commission will assess the compatibility
of the Measure under section 3.11 of the Temporary Framework.
3.3.2. Eligibility and entry conditions
(127) According to point 49 of the Temporary Framework, a COVID-19
recapitalisation measure must fulfil the following conditions:
32
(a) “without the State intervention the beneficiary would go out of business or
would face serious difficulties to maintain its operations. Such difficulties
may be shown by the deterioration of, in particular, the beneficiary's debt
to equity ratio or similar indicators;
(b) it is in the common interest to intervene. This may relate to avoiding social
hardship and market failure due to significant loss of employment, the exit
of an innovative company, the exit of a systemically important company,
the risk of disruption to an important service, or similar situations duly
substantiated by the Member State concerned;
(c) the beneficiary is not able to find financing on the markets at affordable
terms and the horizontal measures existing in the Member State concerned
to cover liquidity needs are insufficient to ensure its viability; and
(d) the beneficiary is not an undertaking that was already in difficulty on 31
December 2019 (within the meaning of the General Block Exemption
Regulation
65
)”.
(128) The Commission notes that the objective of the Measure is to preserve the
viability of the Beneficiary and, in particular, Air France (see section 2.2).
(129) The Commission notes that the negative circumstances due to COVID-19
described in the State Guarantee and Loan Decision still affect the Beneficiary
and, in particular, Air France.
(130) The Commission notes that, as a result of the COVID-19 crisis and the incurred
losses by Air France, its equity position became negative at the end of 2020 (see
recital (14)). That impaired equity position not only affects Air France’s liquidity,
but also threatens its solvency and viability in the short term. In addition, this also
has a direct impact on the Holding’s own viability given that Air France is its
main subsidiary, as explained in recital (113). Against that background, the
Measure is a first step towards restoring the balance sheet of the Beneficiary (see
section 2.2) with a view to avoid its exit from the market and, therefore, the halt
of its operations. The Commission therefore considers that, in absence of the
capital increase, the Beneficiary would face serious difficulties to maintain its
operations.
(131) Furthermore, the Commission notes that the considerations leading to the
conclusion that the Beneficiary and, in particular, Air France has a systemic
importance for the French economy from several standpoints and that a default of
Air France or a significant downsizing of its activities would entail severe
consequences for the French economy, in particular in the COVID-19 outbreak
context, as described in the State Guarantee and Loan Decision, are still
applicable since no major changes have happened in this respect since the State
Guarantee and Loan Decision (see recital (17))
66
. Likewise, by preventing a
65
As defined in Article 2 (18) of the Commission Regulation (EU) No 651/2014 of 17 June 2014
declaring certain categories of aid compatible with the internal market in application of Articles 107
and 108 of the Treaty, OJ L 187, 26.6.2014, p. 1.
66
See recitals 59 to 88 of the State Guarantee and Loan Decision.
33
downsizing of the Beneficiary’s and, in particular, Air France’s activities or even
its exit from the markets where it operates, the Measure avoids significant loss of
employment and thus social hardship, as well as a detrimental impact on
connectivity in the Union. The Commission therefore considers that it is in the
common interest to intervene.
(132) The French authorities further set out the reasons why the Beneficiary is not able
to find financing on debt or equity capital markets at affordable terms and in the
timeframe needed to avoid triggering insolvency proceedings (see recitals (19)
to(22)).
(133) Furthermore, France also demonstrated that the existing horizontal measures in
France to cover liquidity needs and the State aid previously received by the
Beneficiary are not sufficient to ensure its viability in the short term. In particular,
the Commission notes that such measures were aimed at addressing liquidity
issues, whereas the Measure aims at restoring the Beneficiary’s solvency and its
continued viability. It is clear that, despite those previous measures, the
Beneficiary’s equity position was negative at the end of 2020 and, therefore,
additional measures are needed to restore the equity position of the Beneficiary,
and hence its solvency (see recital (23)).
(134) Finally, as indicated by France (see recital (38)), and based on the evidence
submitted by France, the Commission concludes that the Beneficiary is not an
undertaking that was already in difficulty on 31 December 2019 within the
meaning of the GBER. The Commission also notes that France committed that
State aid resulting from the Measure will not be used to cross-subsidise economic
activities of integrated undertakings that were in economic difficulties already on
31 December 2019, and that a clear account separation will be put in place in
integrated companies to ensure that the Measure does not benefit those activities
(135) Therefore, the Commission considers that all conditions of point 49 of the
Temporary Framework are fulfilled.
(136) Pursuant to point 50 of the Temporary Framework, when Member States notify
COVID-19 individual recapitalisation measures, they must provide evidence of a
written request for such aid by the prospective beneficiary undertaking as part of
the notification to the Commission. The Commission takes note that the
notification included such a written request in the form of a letter. The
Commission concludes that the requirement set out in point 50 is therefore
fulfilled.
(137) Based on the above, the Commission concludes that the Measure fulfils the
eligibility and entry conditions as set out in section 3.11.2 of the Temporary
Framework.
3.3.3. Types of recapitalisation measures
(138) According to point 52 of the Temporary Framework, “Member States can provide
COVID-19 recapitalisation measures using two distinct sets of recapitalisation
instruments: (a) equity instruments, in particular, the issuance of new common or
preferred shares; and/or (b) instruments with an equity component (referred to as
34
‘hybrid capital instruments’),
67
in particular profit participation rights, silent
participations and convertible secured or unsecured bonds”. Point 53 of the
Temporary Framework states that “[t]he State intervention can take the form of
any variation of the above instruments, or a combination of equity and hybrid
capital instruments”. In any event, “[t]he Member State must ensure that the
selected recapitalisation instruments and the conditions attached thereto are
appropriate to address the beneficiary's recapitalisation needs, while at the same
time being the least distortive to competition”.
(139) The Measure comprises both an equity instrument (the Equity Participation), as
well as a hybrid capital instrument (the Hybrid Instrument), as further detailed in
sections 2.8.1 and 2.8.2.
(140) The Commission notes that the Measure and the conditions attached to it are
appropriate to address the Beneficiary’s recapitalisation need, while at the same
time being the least distortive to competition. As explained in recitals (14) and
(23), the COVID-19 crisis resulted in significant losses for the Beneficiary, which
in turn led to a negative equity position for both Air France and the Holding
amounting to around EUR -5.4 billion at the end of December 2020 (while both
Air France and the Holding had a positive equity position at the end of 2019).
Therefore, to address this situation and restore the equity position of the
Beneficiary, the Measure is both appropriate and necessary. Mere liquidity
measures (such as a loan) would not be sufficient to that end. The proportionality
of the Measure is also further assessed in section 3.3.4.
3.3.4. Amount of the recapitalisation
(141) According to point 54 of the Temporary Framework, “[i]n order to ensure
proportionality of the aid, the amount of the COVID-19 recapitalisation must not
exceed the minimum needed to ensure the viability of the beneficiary, and should
not go beyond restoring the capital structure of the beneficiary to the one
predating the COVID-19 outbreak, i.e. the situation on 31 December 2019. In
assessing the proportionality of the aid, State aid received or planned in the
context of the COVID-19 outbreak shall be taken into account”.
(142) The proportionality test set out in point 54 of the Temporary Framework has two
cumulative conditions. On the one hand, the COVID-19 recapitalisation must not
exceed the minimum needed to ensure the viability of the aid beneficiary, that is,
it cannot go beyond the minimum amount of recapitalisation aid needed to restore
the company’s access to private capital markets (and be in a position to get debt
and/or equity financing at affordable rates from the markets). On the other hand,
the COVID-19 recapitalisation cannot go beyond restoring the capital structure of
the aid beneficiary to the one predating the COVID-19 outbreak.
(143) First, in order to assess whether the aid does not exceed the minimum needed to
ensure the viability of the aid beneficiary, the Commission will consider what is
67
Hybrid capital instruments are instruments that have characteristics of debt as well as of equity. For
instance, convertible bonds are remunerated like bonds until they are converted into equity. The
assessment of the overall remuneration of hybrid capital instruments thus depends on the one hand on
their remuneration while they are debt-like instruments and on the other hand on the conditions for
conversion into equity-like instruments.
35
the minimum amount of the State recapitalisation needed to restore the aid
beneficiary’s access to capital markets. To that end, the Commission will analyse
the following actual and forecasted indicators:
(a) The net debt-to-equity ratio of the aid beneficiary at the end of 2021 vis-à-
vis that of the aid beneficiary’s peer airlines. The net debt-to-equity ratio
is typically considered by rating agencies when assessing the
creditworthiness of companies. It is widely considered one of the most
important corporate valuation metrics because it highlights a company's
dependence on borrowed funds and the company’s ability to meet those
financial obligations. Because debt is inherently risky, lenders and
investors tend to favour businesses with lower debt-to-equity ratios. A
company with a higher ratio than its peers, therefore, may find it more
difficult to secure additional funding from the market. The Commission
will compare the net debt-to-equity ratio of the aid beneficiary after the
COVID-19 recapitalisation with a benchmark net debt-to-equity ratio of
other European airlines. The Commission considers the net debt-to-equity
ratio of the third quartile of comparable companies as a useful and
appropriate benchmark.
(b) The net debt-to-EBITDA ratio, which is another indicator that rating
agencies use to determine a company’s creditworthiness. The net debt-to-
EBITDA ratio is a debt ratio that shows how many years it would take for
a company to pay back its debt if net debt and EBITDA are held constant.
In particular, the Commission will assess whether the net debt-to-EBITDA
ratio after the COVID-19 recapitalisation is not below the 3.0-3.5
threshold. That is a conservative test, because it is common practice to
consider a net debt-to-EBITDA ratio higher than 3.5 as a signal of poor
creditworthiness. Even though actual credit ratings depend on a number of
factors, companies with those values of net debt-to-EBITDA ratio do not
normally have an investment grade rating, which means they find it more
difficult and expensive to access private capital markets.
(c) The equity-to-asset ratio, which is an alternative creditworthiness indicator
to the net debt-to-EBITDA ratio, for example when the EBITDA
multiplier cannot be calculated due to negative EBITDA figures of the aid
beneficiary. In particular, the Commission will assess whether the equity-
to-asset ratio of the aid beneficiary after the State recapitalisation is above
15%. If the equity of a company is partially or completely depleted due to
losses during the COVID-19 outbreak, the capability to obtain debt
financing at market terms will also require replenishment of the equity
basis. The Commission considers an equity-to-asset ratio of 15% as a
sufficient level to enable companies to obtain debt financing at reasonable
market terms. Nonetheless, a company’s access to market finance depends
on multiple factors including the type of industry in which it operates.
(144) Second, in order to assess whether the aid goes beyond restoring the capital
structure of the aid beneficiary before the COVID-19 outbreak, the Commission
will take into account the financial projections concerning (i) the equity position
of the aid beneficiary and (ii) the net debt-to-equity ratio of the aid beneficiary at
the end of 2021, which takes into account the State recapitalisation. It will,
however, also consider the whole length of the forecast period. The Commission
36
will compare the value of those indicators to those predating the COVID-19
outbreak.
(145) The Commission will conduct the analyses mentioned in recitals (143) and (144)
on the basis of the financial projections of the Beneficiary, which France has
submitted. Those projections cover the period 2021-2025 and include all the
recapitalisation measures in favour of the Beneficiary, including the State and
private contributions. More specifically, the Beneficiary’s financial projections
include the EUR 3 billion State Hybrid Instrument and the State Equity
Participation of EUR 1 billion at maximum.
(146) As indicated in recital (57), the Commission notes that, at the time of this
decision, the exact amount of the Equity Participation is unknown, as it depends
on the subscription price at the time of the equity issuance and the extent of the
participation of private investors. Nonetheless, France committed to inject not
more than EUR 1 billion in the form of share capital. The Commission will take
into account that maximum amount in the proportionality assessment, which is a
conservative assumption.
(147) The Commission observes that France expects private investors to contribute at
most EUR 650 million to the recapitalisation of the Beneficiary. France explained
that this estimate has been made on a conservative basis by the Beneficiary’s
advisory banks. The Commission also notes that the Beneficiary may use those
EUR 650 million to strengthen the equity position of the Holding (instead of
channelling those funds in full to Air France). On a conservative basis, the
Commission will assess the proportionality of the State recapitalisation including
the EUR 650 million contribution from private shareholders.
(148) In addition, the Commission will undertake a sensitivity analysis to assess up to
which level of private contribution to the recapitalisation of the Beneficiary the
proportionality test would be still met. In the unlikely event, which would not be
in line with the estimate of the advisory banks of the Beneficiary, that the
contribution from private shareholders were to exceed this critical threshold,
France commits to re-notify the Measure to the Commission.
(149) The Commission has benchmarked the projections of the Beneficiary against
industry studies to assess whether those are in line with industry forecasts. In
particular, the Commission scrutinized the forecasted operational performance
indicators, financial indicators and losses. Overall, the benchmarking analysis of
the Commission demonstrates that the projections of the Beneficiary are in line –
and even more optimistic (and therefore conservative for the present assessment
as it might underestimate the equity shortfall of the Beneficiary) – with forecasts
from IATA for the airline industry. For example, Air France expects a [40-50]%
increase in available seat kilometers (ASK) and a [40-50]% increase in revenues
in 2021 vis-a-vis 2020, which is more optimistic than the projections of IATA
(35.5% and 39.9%, respectively)
68
. The Commission also notices that the
proportionality assessment takes into account projected losses only in year 2021,
68
Source: https://www.iata.org/en/iata-repository/publications/economic-reports/airline-industry-
economic-performance---november-2020---data-tables/.
37
as the losses in year 2020 are already realized and therefore not subject to
uncertainty.
(150) Finally, the Commission will assess the proportionality of the State
recapitalisation both at the level of (a) Air France (and its subsidiaries) and (b) the
Beneficiary (i.e. Air France as well as the Holding including the subsidiaries that
it controls, with the exception of KLM and its subsidiaries), as defined in recital
(33).
69
3.3.4.1. Whether the public support is limited to the minimum
needed to ensure the viability of the Beneficiary
(151) Table 3 illustrates the effect of the State recapitalisation from France on the
capital structure of (a) Air France (and its subsidiaries) and (b) the Beneficiary.
Table 3 – Proportionality indicators
Description
Air France
(EUR million,
unless ratios)
Beneficiary
(EUR million,
unless ratios)
Total COVID-19 recapitalisation planned
4650
4650
Equity position without recapitalisation
(31.12.2021)
[…]
[…]
A. Equity position (31.12.2019)
180
553
B. Equity position after recap (31.12.2021)
[…]
[…]
Proportionality indicator I: B – A ≤ 0
[passed]
[passed]
C. Net Debt/Equity Ratio (31.12.2019)
[…]
[…]
D. Net Debt/Equity Ratio after recap
(31.12.2021)
Negative
Negative
Proportionality indicator II: C – D ≤ 0
Passed
Passed
Source: France, internal information from Air France.
(152) Table 3 shows that the equity position of Air France after the recapitalisation (on
31 December 2021) is […] EUR […]. That amount of equity includes the
following recapitalisation instruments: (i) EUR 1 billion of share capital injection
from the French State, (ii) EUR 3 billion of hybrid instrument and (iii) the
estimated participation in the share capital injection from private shareholders
amounting to EUR 650 million. On this basis, the total recapitalisation amounts to
EUR 4 650 million.
69
The Commission received the consolidated accounts of the Holding with an adjustment made to
exclude KLM and its subsidiaries.
38
(153) Following the COVID-19 outbreak, Air France incurred losses of EUR […] in
2020 and expects losses of EUR […] in 2021.
70
Moreover, Air France forecasts
an additional loss of EUR […] in 2022 and a return to profitability in 2023. As
such, taking into account the State recapitalisation, the equity position of Air
France on 31 December 2021 will be […] and will not be higher than that before
the COVID-19 outbreak (on 31 December 2019).
(154) The Commission notes that the recapitalisation of Air France does not go beyond
restoring its capital structure from before the COVID-19 outbreak. The reason is
that the projected net debt-to-equity ratio of Air France is negative on 31
December 2021, due to the negative equity position on that date. By contrast, the
net debt-to-equity ratio was [20-30] on 31 December 2019. Based on the forecasts
submitted by France, the 2019 net debt-to-equity ratio of Air France is not
expected to be restored before the end of the planning horizon, namely by the
year […].
(155) The effects of the State recapitalisation measure on the Beneficiary are
qualitatively the same. The (projected) cumulated losses for the years 2020 and
2021 are equal to EUR […] and the net debt-to-equity ratio is estimated to be
negative on 31 December 2021. By contrast, the net debt-to-equity ratio was [6-7]
on 31 December 2019. Therefore, the Commission concludes that, both at the
level of Air France and the Beneficiary, the State recapitalisation does not go
beyond restoring the capital structure to the one predating the COVID-19
outbreak, i.e. the situation on 31 December 2019.
3.3.4.2. Whether the public support is limited to the minimum
needed to restore the capital structure of the Beneficiary
(156) To assess the viability condition of point 54 of the Temporary Framework, the
Commission will employ the tests mentioned in recital (143).
(157) With regard to test a), the Commission compared the forecasted net debt-to-equity
ratio of Air France and the Beneficiary, taking into account the State
recapitalisation, to the same ratio of a sample of peer European airlines on 31
December 2019. This sample consists of 11 European airlines.
71
Among them,
five had a credit rating on 31 December 2019, which ranges between BBB+ and
B+.
72
(158) The Commission notes that, taking into account the State recapitalisation, the
expected net debt-to-equity ratio of Air France on 31 December 2021 is negative,
due to its negative equity position on that date. By contrast, all the peer airlines of
70
The (projected) cumulated losses for Air France over the years 2020 and 2021 amount to EUR […].
71
The sample is comprised of Aegean Airlines, Croatia Airlines, Deutsche Lufthansa, easyJet, Finnair,
Icelandair Group, International Consolidate Airline Group, Norwegian Air Shuttle, Ryanair, SAS
Scandinavian Airlines and Wizz Air. Among those airlines, the median net debt-to-equity ratio was 0.7
and the third-quartile was 2.7 on 31 December 2019.
72
The rated peers are Deutsche Lufthansa, easyJet, International Consolidate Airline Group, Ryanair and
SAS Scandinavian Airlines (Source: Capital IQ). Their net debt-to-equity ratio on 31 December 2019
was between 0.1 and 5.2.
39
Air France had a positive net debt-to-equity ratio before the COVID-19 outbreak,
(i.e. on 31 December 2019).
(159) The same conclusion is reached for the Beneficiary since its expected net debt-to-
equity ratio on 31 December 2021 taking into account the State recapitalisation is
also negative (owing to a negative equity position on that date) in contrast to that
of the sample of peer European airlines.
(160) Therefore, the Commission concludes that the capital structure of Air France and
the Beneficiary does not improve compared to their peer airlines before the
COVID crisis, indicating that the State recapitalisation does not exceed the
minimum to restore the viability of the Beneficiary.
(161) With regard to test b), the Commission has assessed whether, and in which fiscal
year, Air France and the Beneficiary expect the net debt-to-EBITDA ratios to fall
below the 3-3.5 thresholds. It is common market practice to consider companies
with a net debt-to-EBITDA ratio above those thresholds as highly risky. Hence,
companies with those net debt-to-EBITDA ratios would find it difficult to access
private capital markets.
(162) The financial projections of Air France show a negative net debt-to-EBITDA
ratio on 31 December 2021. Hence, as of 31 December 2021, the Measure is not
higher than the amount needed to ensure the viability of Air France and its access
to capital markets once the COVID-19 crisis ends. The projected net debt-to-
EBITDA ratio of Air France turns positive in […], when it is equal to [3-4], and
then gradually decreases over time to reach a value of [1-2] in […]. Those
dynamics indicate that the State recapitalisation will allow Air France to face the
negative effects of the COVID-19 crisis and enable it to restore its access to
private capital markets from the year […] onwards (when its net debt-to-EBITDA
ratio is expected to fall below the critical threshold as defined in recital (161)).
(163) The dynamics of the net debt-to-EBITDA ratio of the Beneficiary is qualitatively
the same as that of Air France. That ratio is negative in 2021, turns positive in
[…] ([4-5]) and decreases over the planning period to reach a value of [1-2] in
[…]. Therefore, the Commission concludes that, also for the Beneficiary, the
State recapitalisation is not higher than the amount needed to ensure the viability
of the Beneficiary in 2021 and restore its access to capital markets from the year
[…] onwards (when its net debt-to-EBITDA ratio is expected to fall below the
critical threshold as defined in recital (161)).
(164) With regard to test c), the Commission compared the forecasted equity-to-asset
ratios of Air France and the Beneficiary, taking into account the State
recapitalisation, to the 15% threshold as defined in recital (143)(c).
(165) On 31 December 2021, that ratio is negative for Air France, due to its negative
equity position on that date. Therefore, it is significantly lower than 15%. The
evolution of the equity-to-asset ratio also shows that the State recapitalisation
does not exceed the minimum to ensure the viability of Air France, as it expects a
negative equity until the end of the planning period, namely by the year […].
(166) The dynamics of the equity-to-asset ratio of the Beneficiary is qualitatively the
same as that of Air France. On 31 December 2021, the Beneficiary also expects a
negative equity position, which is significantly lower than 15%. In similar
40
manner, the evolution of the equity-to-asset ratio also shows that the State
recapitalisation does not exceed the minimum to ensure the viability of the
Beneficiary as it expects a negative equity until the end of the planning period.
(167) Overall, based on the evidence from the net debt-to-equity, net debt-to-EBITDA
and equity-to-assets ratios, the Commission concludes that the State
recapitalisation does not exceed the minimum to ensure the viability of Air France
and the Beneficiary and ensure their access to private capital markets in the year
[…].
Sensitivity analysis
(168) The Commission has also assessed the proportionality of the State recapitalisation
under a sensitivity analysis. The rationale of that analysis is that the
proportionality assessment relies on the financial projections of the Beneficiary
that France provided and, in particular, on the forecasted losses. The Commission
has determined what is the amount of losses for which, all else being equal, the
State recapitalisation would no longer be proportionate on the basis of the capital
structure of the Beneficiary at 31 December 2019 and the indicators in recitals
(143) and (144). The calculation of the Commission assumes that, were the
Beneficiary to incur lower losses, it would enjoy a one-to-one increase in their
available cash and their EBITDA, which is a conservative assumption.
73
(169) The results of the sensitivity analysis show that in terms of the net-debt-to-
EBITDA ratio at December 2021, the Measure would still be proportionate and
the ratio equal to 3.0, had the projected losses of Air France in 2021 been of EUR
[…] instead of EUR […]. Assuming that alternative amount of losses in 2021, the
equity level of Air France would still be negative in 2021 and, therefore, so would
be the net debt-to-equity and equity-to-assets ratios.
(170) As regards the Beneficiary, the results of the sensitivity analysis are qualitatively
the same as that of Air France. The State recapitalisation would still be
proportionate had the losses of the Beneficiary been equal to EUR […] instead of
EUR […]. This is calculated by simulating the value of losses such that the net
debt-to-EBITDA ratio is equal to 3.0 under the conservative assumption as
explained above. With that amount of losses, the equity level of the Beneficiary
would still be negative in 2021 and, therefore, so would be the net debt-to-equity
and equity-to-assets ratios.
(171) Considering that the cumulated losses of Air France (and the Beneficiary) for the
years 2020 and 2021 amount to EUR […] (EUR […]), that [60-70]% ([60-70]%)
of those losses are already incurred in 2020, and that the financial projections for
year 2021 are even more optimistic than industry forecasts from IATA (see recital
73
This is a conservative assumption as for example not all losses have an impact on the cash position in
the same period (instead of paying cash, one can recognise a payable to be settled at a later stage). In
addition, losses might originate from cost items that are not included in EBITDA, such as financial
costs. If losses do not equally affect cash (and therefore, net debt) and EBITDA, the net debt-to-equity
and net debt-to-EBITDA ratios would be higher than under the assumptions of the Commission.
41
(149)) the Commission considers the buffer of EUR […] ([…]) […]
74
as
sufficient to make the proportionality assessment robust to alternative
assumptions in the financial projections.
(172) As explained in recital (148), the Commission also acknowledges the
commitment from France to submit a new aid notification in case the contribution
of private investors to the recapitalisation of the Beneficiary (and potentially to
that of Air France as indicated in recital (147)) is higher than the EUR […]
buffer.
75
3.3.5. Remuneration and exit of the State
(173) According to the general principles of the remuneration and exit of the State
outlined in points 55 to 59 of the Temporary Framework, the Member State must
receive appropriate remuneration for the investment and must put a mechanism in
place that gradually incentivises the exit of the State.
(174) According to point 57 of the Temporary Framework, “[t]he remuneration of the
COVID-19 recapitalisation measure should be increased in order to converge
with market prices to provide an incentive to the beneficiary and to the other
shareholders to redeem the State recapitalisation measure and to minimise the
risk of distortions of competition”. Point 58 of the Temporary Framework clarifies
that the purpose of point 57 is that the recapitalisation measures “contain
appropriate incentives for undertakings to redeem the recapitalisation and look
for alternative capital when market conditions permit, by requiring a sufficiently
high remuneration for the recapitalisation”.
(175) With particular regard to the remuneration, point 59 of the Temporary Framework
allows Member States to “notify schemes or individual measures where the
remuneration methodology is adapted in accordance with the features and
seniority of the capital instrument provided they overall lead to a similar outcome
with regard to the incentive effects on the exit of the State and a similar overall
impact on the State's remuneration”.
(176) The Commission will assess compliance of the Measure with those general
principles, taking into account the specific rules set out by the Temporary
Framework depending on the type of recapitalisation instrument (notably points
60 to 64 of the Temporary Framework as regards equity instruments and points
65 to 70 of the Temporary Framework as regards the hybrid capital instruments).
3.3.5.1. The Hybrid Instrument
(177) In accordance with point 65 of the Temporary Framework, the Commission
assesses the overall remuneration of the Hybrid Instrument by factoring in the
74
That is the difference between the projected losses of Air France (the Beneficiary) in 2021, i.e. EUR
[…] (EUR […]), and the amount of losses such that the State recapitalisation is no longer
proportionate, i.e. EUR […] (EUR […]).
75
On a conservative basis, the Commission considers the lower bound of the identified buffer as part of
the sensitivity analysis, in order to assess to which level of private contribution to the recapitalisation
of the Beneficiary (and potentially to Air France) could rise while still satisfying the proportionality
test.
42
characteristics of the instrument (recitals (59), (60) and (61)), its built-in
incentives for exit and an appropriate interest rate.
(178) According to point 66 of the Temporary Framework, hybrid capital instruments,
until they are converted into equity-like instruments, must bear a minimum
remuneration at least equal to the base rate (1-year IBOR or equivalent as
published by the Commission)
76
plus the premium as set out in Table 4.
Table 4 – Remuneration of hybrid capital instruments: 1-year IBOR +
Type of
recipient
1
st
year
2
nd
year
3
rd
year
4
th
year
5
th
year
6
th
year
7
th
year
8
th
year
and after
Large
enterprises
250 bps
350 bps
350 bps
500 bps
500 bps
700 bps
700 bps
950 bps
(179) As explained in recital (63) and Table 2, the remuneration of the Hybrid
Instrument will use the 1-year EURIBOR as base rate.
(180) The Commission also notes that the Hybrid Instrument will be treated as equity
under IFRS rules (recital (60)), as it exhibits many equity-like characteristics,
resulting in a higher risk for investors.
77
Therefore, the higher remuneration above
the minimum required under point 66 of the Temporary Framework ([…] bps)
takes into account the additional risk borne by the State due to the fact that the
Hybrid Instrument is close to equity in terms of seniority (recital (59))
78
, is not
convertible into shares (recital (61)), bears coupons only payable at the
Beneficiary’s discretion (recital (60)
79
, and is perpetual in duration (recital (59)).
(181) To ensure that the coupons are ultimately paid, especially given that the
Beneficiary has the option not to do so, there are several incentivising
mechanisms: (i) interest on unpaid (deferred) coupons is compounded; (ii)
coupons always accrue to the initial nominal amount of the Hybrid Instrument;
and (iii) the behavioural requirements laid down in section 3.11.6 of the
Temporary Framework will continue to apply until the nominal amount of the
Hybrid Instrument and the accrued unpaid coupons (including compound interest)
have been fully repaid by the company irrespective of a potential sale, unless the
76
Base rates calculated in accordance with the Communication from the Commission on the revision of
the method for setting the reference and discount rates (OJ C 14, 19.01.2008, p.6.), published on the
website of DG Competition at
https://ec.europa.eu/competition/state_aid/legislation/reference_rates.html.
77
For example, the Hybrid Instrument is of perpetual nature and the payment of coupons could be
deferred at the discretion of the Beneficiary.
78
In case of insolvency, the Hybrid Instrument is senior to subscribed capital and to capital reserves.
79
A risk-mitigating factor is the fact that unpaid coupons will accrue compound interests, although there
is a time value effect as deferring coupons is likely to reduce the net present value of the State’s
remuneration.
43
Hybrid Instrument is sold at par value or above including accrued unpaid coupons
(including compound interest).
80
(182) As regards the exit incentives for the State, the Hybrid Instrument includes a […]
increasing interest rate (together with compound interest in case of unpaid
coupons) that makes them an increasingly costly source of funding for the
Beneficiary. Moreover, in accordance with section 3.11.6 of the Temporary
Framework, the Hybrid Instrument needs to be redeemed in order for the
behavioural commitments imposed on the Beneficiary under this Decision to end.
All those elements create strong incentives for the Beneficiary to repay or to
refinance the Hybrid Instrument as soon as possible.
(183) Taking into account the particular risk profile, characteristics and built-in exit
incentives of the Hybrid Instrument, the Commission considers that a top-up of
[…]bps over the minimum remuneration as defined by point 66 of the Temporary
Framework (Table 4) is required to provide sufficient remuneration for the State.
(184) Therefore, the remuneration of the Hybrid Instrument issued by the Beneficiary
would be at least equal to the one as set out in Table 5 (recital (63)).
Table 5 – Remuneration of the Hybrid Instrument: 1-year EURIBOR +
margin
Hybrid
Instrument
1
st
year
2
nd
year
3
rd
year
4
th
year
5
th
year
6
th
year
7
th
year
8
th
year
and after
Minimum
margin
[>250]
bps
[>350]
bps
[>350]
bps
[>500]
bps
[>500]
bps
[>700]
bps
[>700]
bps
[>950]
bps
Note: The coupon rates in certain years may increase above the minimum margin for the Hybrid
Instrument as part of the alternative approach for compliance of the Share Capital Increase with
point 60 of the Temporary Framework.
(185) For the above reasons, the Commission concludes that for the Hybrid Instrument
the remuneration for the State and the exit incentives comply with the principles
set out in points 65 to 70 of the Temporary Framework.
3.3.5.2. The Equity Participation
(186) The Commission notes that, according to point 60 of the Temporary Framework,
a share capital injection by the State must be conducted at a price that does not
exceed the average share price of the beneficiary over the 15 days preceding the
request for the capital injection (recital (54)).
(187) France will ensure that the Equity Participation will comply with point 60 of the
Temporary Framework. Points 59 and 62 of the Temporary Framework allow for
a certain degree of flexibility provided that the proposed alternative mechanism
overall leads to a similar outcome as foreseen under point 60, in particular with
regard to the incentive effects on the exit of the State and the overall impact on
the State’s remuneration.
80
The Commission considers it to be appropriate to include the additional remuneration under the
alternative approach for compliance with point 60 of the Temporary Framework in the form of
increased coupon rates on the Hybrid Instrument (if any).
44
(188) Pursuant to French law applicable to capital increases with a priority subscription
period, France is not able to commit to strict compliance with the Entry Price
Limit (recital (53)). As explained in recital (56), France proposed an alternative
approach to deal with any potential scenario in which the actual subscription price
of the Equity Participation would exceed the Entry Price Limit. In such a case, the
Beneficiary commits to pay to the State an additional remuneration based on a
comparison of the actual share capital injection and a counterfactual scenario of
strict compliance with point 60. In that setting, the Required Compensation would
be equal to the difference between the actual subscription price and the Entry
Price Limit, multiplied by the number of newly acquired shares.
81
If the actual
subscription price remains under the Entry Price Limit, there will be no need for
Required Compensation.
(189) As explained in recital (62)(b), France relies on an alternative approach for
compliance with point 60 of the Temporary Framework by increasing the coupon
rates on the Hybrid Instrument to offer the State additional remuneration if the
actual subscription price of the Equity Participation exceeds the Entry Price
Limit.
82
In such a case, France commits that the Beneficiary will adjust the
remuneration profile on the Hybrid Instrument to ensure that the present value of
the resulting additional remuneration
83
would be equal to or exceed the Required
Compensation.
84
To accommodate that alternative approach, the issuance of the
Hybrid Instrument establishing the additional remuneration will only take place
following the planned Share Capital Increase and the determination of the actual
subscription price. In addition, France commits to provide this additional
remuneration through adjusting the remuneration profile on the Hybrid
Instrument from the moment of its issuance until the first call dates that apply to
each of its tranches, thereby ensuring that the present value of this additional
remuneration will be sufficient. Finally, France commits that the Beneficiary will
make a cash payment to the State to ensure compliance with point 60 of the
Temporary Framework in case the additional remuneration would not be
sufficient ex post (for instance, in case of an early repayment of the Hybrid
Instrument).
85
81
For instance, assume that France subscribes to 100 million shares at a subscription price of EUR 6,
while the Entry Price Limit would be EUR 5. The amount of the Equity Participation would then be
equal to EUR 600 million. In that case, the Required Compensation to the State would amount to EUR
100 million.
82
The Commission has validated the calculation method to adjust the coupon rates on the Hybrid
Instrument under different hypothetical scenarios simulating different levels of Required
Compensation in order to ensure compliance with point 60 of the Temporary Framework. For instance,
assume that France subscribes to 100 million shares at a subscription price of EUR 6, while the Entry
Price Limit would be EUR 5. The amount of the Equity Participation would then be equal to EUR 600
million. In that case, the Required Compensation to the State would amount to EUR 100 million. The
Beneficiary will provide the Required Compensation through additional remuneration on the Hybrid
Instrument by increasing its coupon rates in certain years.
83
The present value is calculated by discounting the additional remuneration over time at the minimum
coupon rates on the Hybrid Instrument (as set out in Table 2).
84
In case unpaid coupons are deferred, they are capitalised with compound interest.
85
Until the end of the Mandate, the Monitoring Trustee shall monitor the accrued additional
remuneration to the State on a yearly basis, and instruct a payment in cash in case of insufficient
45
(190) The Commission considers that the alternative approach as proposed by France
leads to a similar overall impact on the State’s remuneration.
86
This is for the
following reasons. First, the proposed mechanism mirrors the counterfactual
scenario of strict compliance with point 60 of the Temporary Framework by
ensuring that the present value of the additional remuneration on the Hybrid
Instrument will be equal to or exceed the Required Compensation (recital (189)).
Second, the additional remuneration on the Hybrid Instrument is fully equivalent
to the present value of a theoretical hybrid instrument with a face value that is
equal to the Required Compensation assuming that the State accrues coupons at
the same rate as the Hybrid Instrument.
87
By that logic, the alternative approach is
equivalent to a scenario in which the State would inject equity at the Entry Price
Limit (and hence, ensures strict compliance with point 60 of the Temporary
Framework) in addition to buying an additional hybrid instrument with the same
characteristics as the Hybrid Instrument from the Beneficiary at a face value equal
to the Required Compensation. In this scenario, France would grant the same
amount of aid as in the Equity Participation, but part of the aid amount would take
the form of a hybrid instrument instead of share capital.
88
Since the total amount
of aid to the Beneficiary does not change, as only the aid instrument would be
different, the Commission notes that the proportionality assessment in section
3.3.4 remains valid in the equivalent scenario.
(191) In addition, the Commission considers that the alternative approach as proposed
by France overall leads to a similar outcome with regard to the incentive effects
on the exit of the State.
89
To allow for the exit of the State from its Equity
Participation, the Temporary Framework provides for two options, namely
through a buy-back of the newly acquired shares as defined by point 63 or
through alternative exit mechanisms as defined by points 64, 64bis and 64ter.
While point 64bis is not applicable in the present case (since the French State is
not the only existing shareholder), for the options set out by points 64 and 64ter,
France and the Beneficiary commit to comply with the conditions as set out by
the Temporary Framework. For the purpose of the determination of the minimum
buy-back price in point 63 and for the implementation of point 64ter a), the
Commission considers it to be appropriate to use the amount of the Equity
Participation determined on the basis of point 60 of the Temporary Framework
compensation (at the latest at full redemption of the Hybrid Instrument). In the latter case, the
Beneficiary will be required to pay the difference in cash together with accrued compound interest
(within three months of the request).
86
See points 59 and 62 of the Temporary Framework.
87
The present value is calculated by discounting the (deferred) coupons on the hypothetical hybrid
instrument over time at the minimum coupon rates on the Hybrid Instrument (as set out in Table 2).
88
In the previous hypothetical example, the actual equity injection amounting to EUR 600 million is
equivalent to a scenario where the State subscribes to shares at the Entry Price Limit, thereby injecting
EUR 500 million of equity, in addition to buying an additional hybrid instrument with the same
characteristics as the Hybrid Instrument at a face value equal to the Required Compensation of EUR
100 million.
89
See points 59 and 62 of the Temporary Framework.
46
instead of the actual amount of the Equity Participation
90
(in line with recital
(190)) while taking into consideration the impact of the alternative approach on
the incentive effects for the exit of the State for the Hybrid Instrument (as
explained in recital (181)).
(192) According to points 61 and 62 of the Temporary Framework, equity instruments
are to include a step-up mechanism increasing the remuneration of the State to
incentivise the Beneficiary to buy back the State capital injections. The
Commission acknowledges the commitment of France to implement the step-up
mechanism as described in point 61 of the Temporary Framework. As described
in recitals (65) to (69), France will receive a remuneration equivalent to an
additional 10% shareholding after 4 and 6 years from the State recapitalisation if,
at those dates, 40% and 100% of the Equity Participation, respectively, have not
been redeemed by the beneficiary or sold by the State. This step-up remuneration
is equal to the market value of the shares that are necessary to achieve a 10%
increase of the COVID-19 capital injection still outstanding at years 4 and 6 after
the State recapitalisation.
(193) The Beneficiary commits to pay the step-up remuneration either in additional
shares, a corresponding amount of cash or in the form of a hybrid instrument for
the same value in line with market conditions
91
at its own discretion. The Step-up
Hybrid will have the same characteristics as the Hybrid Instrument as part of the
Measure (e.g. perpetual maturity, deferrable coupons at the discretion of the
issuer, deeply subordinated), except for the remuneration. To ensure that the
nominal value of the Step-up Hybrid is equivalent to the alternative step-up
payment options in the form of cash or additional shares, the remuneration of the
Step-up Hybrid will be set in line with the market conditions at the time of
issuance for similar instruments (in terms of maturity, level of subordination,
conditions on coupon payments, etc.) and for issuers with a similar credit quality
as the Beneficiary. France commits to inform the Commission on the level of the
Step-up Hybrid remuneration and the methodology used for its determination in
view of obtaining approval by the Commission.
(194) To incentivise the Beneficiary to pay the coupons on the Step-up Hybrid and
ensure the State receives adequate step-up remuneration, France commits to
comply with the following conditions: (1) the Beneficiary will make a coupon
payment on the Step-up Hybrid in case it pays a dividend or makes a non-
mandatory coupon payment or another hybrid instrument
92
; (2) the behavioural
requirements laid down in section 3.11.6 of the Temporary Framework will
continue to apply until the nominal amount of the Step-up Hybrid Instrument and
the accrued unpaid coupons (including compound interest) have been fully repaid
by the company irrespective of a potential sale, unless the Step-up Hybrid is sold
90
For instance, assume that France subscribes to 100 million shares at a subscription price of EUR 6,
while the Entry Price Limit would be EUR 5. The amount of the Equity Participation determined on
the basis of point 60 of the Temporary Framework would then be equal to EUR 500 million (instead of
EUR 600 million).
91
Defined as the Step-up Hybrid.
92
This condition would apply after the governance conditions under point 77 of the Temporary
Framework were to be lifted after the COVID-19 recapitalisation measures have been fully redeemed.
47
at par value or above including accrued unpaid coupons (including compound
interest).
(195) For the above reasons, the Commission concludes that for the Equity
Participation, the remuneration for the State and the exit incentives comply with
the principles set out in points 60 to 64 of the Temporary Framework.
3.3.6. Governance and prevention of undue distortions of competition
(196) As detailed in this section, the Beneficiary (i.e. the Holding and their subsidiaries
with the exception of KLM and its subsidiaries) will respect the conditions
referred to in section 3.11.6 of the Temporary Framework (“Governance and
prevention of undue distortions of competition”).
3.3.6.1. Measures to preserve effective competition in situations of
significant market power
(197) According to point 72 of the Temporary Framework, if the beneficiary of a
COVID-19 recapitalisation measure above EUR 250 million is an undertaking
with significant market power on at least one of the relevant markets in which it
operates, Member States must propose additional measures to preserve effective
competition in those markets. The Measure concerns an up to EUR 4 billion
recapitalisation in favour of the Beneficiary. As the recapitalisation amount
exceeds EUR 250 million, the Commission will assess whether the Beneficiary
has significant market power for the purposes of point 72 of the Temporary
Framework.
(a) Identification of the relevant markets
(198) Considering the Commission decisional practice,
93
the markets in which the
Beneficiary operates relevant for the purposes of assessing the distortive effects
of the measure on competition are the markets for the provision of passenger air
transport services to and from the airports served by the Beneficiary.
(199) The Measure aims at preserving the overall ability of the Beneficiary to operate
air transport services, notably ensuring the preservation of its assets and its rights
to operate in the medium/long term. Those assets and rights are not assigned, in
principle, to any particular route. This is particularly true for slots at a coordinated
airport,
94
which may be highly valuable and may be used on any route to and
from the airport.
(200) The Measure supports the operations of the Beneficiary and may therefore
potentially affect competition on all routes originating and arriving at an airport at
which the Beneficiary holds slots, regardless of the specific competitive position
of the Beneficiary on any of those routes. It is thus not appropriate to analyse the
impact of the measure on each of those routes separately. Instead, for the
93
See notably Case SA.57153 – Germany – COVID-19 – Aid to Lufthansa, recitals (165) to (170), and
cases referred to therein.
94
According to Article 2 of the “Slot Regulation”, a “coordinated airport” means “an airport where a
coordinator has been appointed to facilitate the operations of air carriers operating or intending to
operate at that airport”.
48
purposes of the applying point 72 of the Temporary Framework, it is appropriate
to define as relevant markets the airports at which the beneficiary supplies
passenger air transport services. The beneficiary’s power on such relevant
markets will be assessed inter alia on the basis of the level of congestion of the
airports and the Beneficiary’s shares of airport infrastructure capacity that it has
the permission to use for its operations (i.e. shares of slots).
95
(b) Overview of the relevant airports for the Beneficiary
(201) In its notes of 8 and 10 December 2020, France explained that the Beneficiary
operated a base at 12 airports in the EU during the Summer 2019 IATA Season or
Winter 2019/2020 IATA Season.
96
,
97
Of those 12 airports, three are coordinated
airports.
98
For the purposes of assessing the Beneficiary’s position at those
coordinated airports, it is necessary to consider whether they are substitutable
with other airports in view of their overlapping catchment areas.
(202) The question of substitutability is relevant only for the two Paris airports, i.e.
Paris-Charles-de-Gaulle (CDG) and Paris-Orly (ORY).
(203) For the purposes of defining the geographic market relevant for the assessment of
the distortive effects of the aid at the Paris airports, the substitutability of CDG
and ORY should be assessed from the point of view of air carriers, acting as
customers of airport infrastructure services. Air carriers’ choice of airports
depends not only on passengers’ demand, but also on other criteria, such as the
costs of operating from a particular airport, capacity constraints for slots and
facilities, passenger volumes or the positioning of the airport.
99
(204) The analysis of the above-mentioned indicators does not allow to reach a clear-cut
conclusion as to the substitutability of CDG and ORY.
100
(205) Indeed, on the one hand, there are a number of indicia supporting the
substitutability of the two airports, in particular: (i) the catchment areas of the two
95
See examples by analogy: Case M.8633 – Lufthansa/Certain Air Berlin Assets; Case M.8672 –
easyJet/Certain Air Berlin Assets.
96
As per the definition of the Beneficiary, only bases operated by Air France and its subsidiaries (and
not by KLM or its subsidiaries) are taken into account.
97
Those airports are: Paris-Charles-de-Gaulle, Paris-Orly, Lyon-Saint-Exupéry, Marseille-Provence,
Lille-Lesquin, Nantes-Atlantique, Rennes-Bretagne, Toulouse-Blagnac, Strasbourg-Entzheim,
Bordeaux-Mérignac (Summer 2019 IATA Season only), Montpellier-Méditerranée (Winter 2019/2020
IATA Season only), and Aéroport Guadeloupe – Pôle Caraïbes.
98
Those airports are: Paris-Charles-de-Gaulle, Paris-Orly, and Lyon-Saint-Exupéry.
99
Therefore, the geographic market definition under such an airport-by-airport approach (i.e. where
every airport (or substitutable airports) is defined as a distinct market), which primarily relies on
substitutability from the point of view of airlines, may deviate from the geographic market definition
under the point of origin/point of destination city-pair approach (i.e. where every combination of an
airport or city of origin to an airport or city of destination is defined as a distinct market). The latter
primarily relies on substitutability from the point of view of passengers.
100
By contrast, and for the sake of completeness, it can be concluded that neither CDG nor ORY are
substitutable with Beauvais-Tillé airport.
49
airports largely overlap (for both airports, the distance and travelling time to Paris
city centre are below the indicative benchmark of 100 km/1 hour driving time),
although their gravity centres (at the north or south of Paris) slightly diverge; (ii)
the structure of the airport charges (fee schedule for services rendered) is identical
at the two airports;
101
(iii) the infrastructures of the two airports can accommodate
all types of traffic (e.g. short- and long-haul, point-to-point and connecting,
business- and leisure-oriented traffic); and (iv) the two airports are coordinated.
(206) On the other hand, there are a number of indicia supporting non-substitutability of
the two airports, in particular: (i) the two airports have different and
complementary positioning, with CDG being the reference hub and ORY
focussing on point-to-point traffic, notably for passengers visiting friends and
relatives (VFR) and leisure destinations; (ii) the manager of the two airports
(Aéroports de Paris) did not consider that CDG and ORY are subject to the same
competitive environment, with only CDG competing with other EU hubs and for
intercontinental traffic, and only ORY being subject to intermodal competition;
102
(iii) as a consequence, the weight of long-haul and connecting traffic varies
substantially between the two airports. As the number of long-haul destinations at
ORY is limited (mainly French overseas territories), the long-haul fleet at ORY is
limited (approximately 10 aircraft), while it reaches approximately 100 aircraft at
CDG, and connecting passengers at ORY represent 8% of the passengers at ORY,
while they represent approximately 30% at CDG; (iv) the size of the two airports
are materially different (76 million passengers and 498 175 movements at CDG in
2019; 32 million passengers and 218 349 movements at ORY in 2019); (v) the
streamlined infrastructure at ORY allows shorter taxiing times, which, together
with shorter flight times to Southern destinations at ORY, may have a material
impact on the difference in the costs of operating French domestic flights from
ORY and CDG; (vi) low-cost carriers are significantly more present at ORY
(40% of the overall traffic) than at CDG (15% of the overall traffic); (v)
importantly, despite being both coordinated airports, the congestion levels of the
two airports are not comparable, since ORY is fully congested, while CDG is not
as severely constrained.
(207) In any case, for the purpose of this Decision, the question of whether ORY and
CDG belong to the same geographic markets for passenger air transport can be
left open, as the Structural Commitments proposed by France adequately preserve
competition in the only plausible relevant market on which the Beneficiary would
have significant market power (provision of passenger air transport services to
and from ORY) (see recitals (244) to (245), and (272)).
101
Nevertheless, the charges at the two airports are regulated. Furthermore, the unit amounts of certain
components (e.g. supplemental fees for check-in counters and boarding gates and origin/destination
baggage handling) differ at the two airports, resulting in small but possibly significant differences in
the overall amount of airport charges at the two airports.
102
See Base Document for the initial public offering of Aéroports de Paris (“document de base”, 2006), p.
8-9 : https://www.parisaeroport.fr/docs/default-source/groupe-fichiers/finance/relations-
investisseurs/information-financière/introduction-en-bourse/document-
_de_base.pdf?sfvrsn=e93a0abd_2
50
(c) Assessment of the Beneficiary’s market power at the relevant airports
(i) Conditions for the Beneficiary’s significant market power at the
relevant airports
(208) To be able to provide passenger air transport services, an air carrier needs access
to airport infrastructure. At congested airports, an air carrier must thus hold slots
to operate routes to or from those airports.
(209) Lack of access to slots is therefore a barrier to an air carrier's ability to compete
for passengers on routes between an airport and the destinations served from the
airport. An air carrier's slot holding at an airport and the latter’s capacity
constraints provide a measure of the air carrier’s ability to compete on the
passenger air transport market to or from that airport.
(210) In light of the above and of the Commission decisional practice,
103
the
Commission will assess the Beneficiary’s market power at the relevant airports by
taking account of three factors together: (i) the Beneficiary’s slot holding at the
airport or at substitutable airports being high, in particular at peak times;
104
(ii) the
level of congestion at the airport or at the substitutable airports being high; and
(iii) the Beneficiary’s competitors’ slot holdings being limited.
(ii) Methodology
(211) A slot holding is defined as the ratio between the number of slots held by an air
carrier (or the air carriers that are part of the same group)
105
at an airport and the
total available slots at that airport (i.e., the airport capacity).
(212) The Commission has used the qualification as a coordinated airport under the Slot
Regulation as a first proxy of a high congestion level of an airport. Such a
qualification means that, at those airports, the demand for airport infrastructure, in
particular slots, significantly exceeds the airport's capacity and the expansion of
airport infrastructure to meet demand is not possible in the short term.
(213) For coordinated airports, the actual congestion rate is calculated by dividing the
number of slots allocated to all airlines at the airport in the relevant IATA season
by the total capacity of the airport (in terms of slots) in the relevant IATA season.
103
See notably Case SA.57153 – Germany – COVID-19 – Aid to Lufthansa, section 3.3.6.3 and Case
M.8633 – Lufthansa/Certain Air Berlin assets (2017), recitals 165-184.
104
The Commission qualifies as "peak times" the hour bands for which the congestion rate at a given
airport is very high, and therefore very limited, or no, capacity for entry or expansion is left.
105
As per the definition of the Beneficiary, the Beneficiary’s slot holding is calculated on the basis of
slots held by Air France and its subsidiaries (Air France, HOP! and Transavia France). The
Commission notes that the addition of the slots held by KLM and its subsidiary Transavia Netherlands
would not affect materially the Beneficiary’s slot holdings at the relevant airports and would not
change the Commission’s finding as to the Beneficiary’s significant market power at ORY only
(where taking account of KLM and its subsidiaries would have no impact, as KLM or its subsidiaries
did not hold slots at ORY during the reference IATA seasons).
51
An average congestion rate during the operating hours of less than 60% would not
be prima facie problematic.
106
(214) France has provided data on the Beneficiary’s slot holding at the relevant airports
and on the congestion rates at those airports. For the Beneficiary’s competitors,
France has provided the number of slots allocated to them at ORY and CDG, as
well as an estimation of the number of aircraft they base at the relevant airports.
The Commission has checked the overall accuracy of the data submitted by
France based on data reported by COHOR, the French slot coordinator.
107
(d) Airport-by-airport assessment
(215) The Beneficiary had a base in the EU during the Summer 2019 IATA Season or
Winter 2019/2020 IATA Season at three coordinated airports: CDG, ORY and
Lyon-Saint-Exupéry. In accordance with recital (207), with regard to CDG and
ORY, the Commission will assess whether the Beneficiary has significant market
power if the relevant geographic markets are defined as CDG and ORY
separately, or if the relevant geographic market is defined as CDG and ORY
together.
(i) Paris-Charles de Gaulle airport (CDG)
IATA Season
Beneficiary’s
average slot
holding
Beneficiary’s
three highest
slot holdings
Airport’s
average
congestion
rate
Airport’s
three highest
congestion
rates
Summer 2019
[30-40]%
[50-60]%
(hour band: 6:00-
6:59 UTC)
[50-60]%
(hour band: 5:00-
5:59 UTC)
[40-50]%
(hour band:
10:00-10:59
UTC)
[70-80]%
[90-100]%
(hour band: 8:00-
8:59 UTC)
[80-90]%
(hour band:
10:00-10:59
UTC)
[80-90]%
(hour band:
19:00-19:59
UTC)
Winter
2019/2020
[30-40]
[50-60]%
(hour band: 7:00-
7:59 UTC)
[40-50]%
(hour band:
[60-70]%
[70-80]%
(hour band: 8:00-
8:59 UTC)
[70-80]%
(hour band:
106
The conditions of operation at the relevant airports may differ due to, notably, different opening hours,
night-flight bans and movement restrictions. For the sake of comparability, considering the night
curfew at ORY between 23:30 and 6:00 local time, the Commission has considered the Beneficiary’s
slot holding and airport congestion rate at CDG between 6:00 and 23:59 local time (i.e. between 4:00
and 21:59 UTC during IATA Summer Season and between 5:00 and 22:59 UTC during IATA Winter
Season).
107
The coordinator is the person responsible for the allocation of slots (Article 4(5) of the Slot
Regulation).
52
11:00-11:59
UTC)
[30-40]%
(hour band: 6:00-
6:59 UTC)
11:00-11:59
UTC)
[70-80]%
(hour band: 7:00-
7:59 UTC)
The Beneficiary’s slot holding
(216) In Summer 2019 IATA Season and Winter 2019/2020 IATA Season, France
estimates that the Beneficiary’s share in slot holding at CDG was respectively
[30-40]% and [30-40]%. Consequently, the Beneficiary’s operations represented a
significant share of the airport capacity during that airport's opening hours.
(217) In addition, in Summer 2019 IATA Season, the Beneficiary’s highest share
during any specific hour band at CDG reached [50-60]%. That hour band
nevertheless does not correspond to any of the three most congested hour bands at
CDG. In Winter 2019/2020 IATA Season, the Beneficiary’s highest share during
any specific hour band at CDG reached [50-60]%. That hour band corresponds to
the third most congested hour band at CDG. At peak times, the Beneficiary’s slot
holding at CDG represents at most [50-60]% of the available capacity at that
airport.
Airport’s congestion
(218) In Summer 2019 IATA Season and Winter 2019/2020 IATA Season, France
estimates that the average congestion rate during the relevant opening hours of
CDG amounted to respectively [70-80]% and [60-70]%.
(219) In Summer IATA Season and Winter IATA Season, although CDG is
coordinated, there are still available slots for entry or expansion at the airport.
However, there is limited capacity available during peak times in Summer IATA
Season (below 15%).
The Beneficiary’s competitors’ slot holdings
(220) In Summer 2019 IATA Season, the second- and third-largest slot holders at CDG
were respectively easyJet (with a share in slot holding of approximately 5%) and
IAG (with a share in slot holding of approximately 4%). In Winter 2019/2020
IATA Season, the second- and third-largest slot holders at CDG were respectively
easyJet (with a share in slot holding of approximately 4%) and Lufthansa (with a
share in slot holding of approximately 3%).
(221) In addition, the Beneficiary deployed by far the largest fleet at the airport with
[150-200] aircraft in 2019. According to France’s estimates, the second-largest
carrier operating a base at CDG was easyJet with 9 aircraft, followed by ASL
Airlines (7 aircraft).
Conclusion on the Beneficiary’s market power
(222) Considering that (i) the Beneficiary’s average slot holding was only [30-40]% in
Summer 2019 IATA Season (and only [30-40]% in the Winter 2019/2020 IATA
Season), and its highest slot holding does not exceed [50-60]% at any hour band,
53
and (ii) there are still slots available at CDG, the Commission considers that it is
possible for the Beneficiary’s competitors to build up a substantial slot portfolio
using the airport capacity not allocated to the Beneficiary.
(223) Therefore, the Commission finds that, for the purposes of this Decision, the
Beneficiary does not have significant market power on the market for the
provision of passenger air transport services to and from CDG.
(ii) Paris-Orly airport (ORY)
(224) ORY is subject to an administrative cap for environmental and noise restriction
reasons. Pursuant to this cap, the maximum number of slots that can be allocated
at ORY is 250 000 per year (Summer and Winter IATA Seasons), which is not
broken down per season or hour band. In addition, ORY is subject to a night
curfew between 23:30 and 6:00 (local time) and the number of movements
authorised between 6:00 and 7:00 and between 22:00 and 23:00 (local time) is
limited.
108
(225) Those regulatory constraints are the main source of congestion at ORY, as the
airport infrastructure would allow approximately 400 000 movements per year.
The following ratios are thus calculated on the basis of the above-mentioned
caps.
109
IATA Season
Beneficiary’s
average slot
holding
110
Airport’s
average
congestion
rate
Rate of use of
the early
morning
departure
capacity and
late evening
arrival
capacity
Beneficiary’s
average early
morning
departure slot
holdings and
late evening
arrival slot
holdings
Summer 2019
[50-60]%
[90-100]%
[90-100]% of
departure
capacity (4:00-
4:59 UTC in
Summer and
5:00-5:59 UTC in
Winter)
[60-70]% of
departure
capacity (4:00-
4:59 UTC in
Summer and
5:00-5:59 UTC in
Winter)
108
Maximum 25 departures and 30 movements between 6:00 and 7:00 (local time) and maximum 39
arrivals and 51 movements between 22:00 and 23:30 (local time).
109
In addition, the slots reserved by the French Civil Aviation Authority for Public Service Obligations
routes are excluded from the total number of slots available at ORY and the number of slots held by
the Beneficiary, as these slots are subject to specific allocation rules and are conditioned to the
operations of specific routes.
110
The slot holdings of the Beneficiary and its competitors at ORY are based on their position at ORY
prior to the reallocation of the slots held by bankrupt Aigle Azur in December 2019. Their slot
holdings would not be materially affected if slots reallocated from Aigle Azur were taken into account.
The conclusions reached in this Decision would not be affected.
54
Winter
2019/2020
[50-60]%
[90-100]%
[85-100]% of
arrival
capacity (20:00-
21:30 UTC in
Summer and
21:00-22:30 UTC
in Winter)
[50-60]% of
arrival
capacity (20:00-
21:30 UTC in
Summer and
21:00-22:30 UTC
in Winter)
The Beneficiary’s slot holding
(226) In Summer 2019 IATA Season and Winter 2019/2020 IATA Season, France
estimates that the Beneficiary’s share in slot holding at ORY was respectively
[50-60]%. Consequently, the Beneficiary’s operations represented a significant
share of the airport capacity during that airport’s opening hours.
(227) In addition, in 2019 (Summer 2019 and Winter 2019/2020 IATA Seasons), the
Beneficiary’s share of departure capacity at ORY during the first morning hour
band, to which access is particularly restricted, reached [60-70]%. Its share of
arrival capacity at ORY during the latest evening hour bands, to which access is
particularly restricted, reached [50-60]%. At peak times, the Beneficiary’s slot
holding at ORY thus represent most of the available capacity at that airport.
Airport’s congestion
(228) In Summer 2019 IATA Season and Winter 2019/2020 IATA Season, France
estimates that the average congestion rate at ORY amounted to respectively [90-
100]% and [90-100]%. In fact, the slot pool is structurally empty at ORY, which
makes it impossible to enter or expand at the airport, except following exceptional
circumstances e.g. the exit of an operator at ORY (e.g. following its bankruptcy).
(229) In addition, independently of the administrative cap on the total number of slots
that can be allocated per year, there are few, if any, available departure slots
during the early morning hour and few, if any, available arrival slots during the
late evening hours at ORY. This limits the ability of air carriers based at ORY to
maximise their daily operating time, thus their operating efficiency.
(230) As reflected by the actual levels of congestion and as a result of the administrative
cap, ORY is a coordinated airport with no available capacity for entry or
expansion during Summer or Winter IATA Seasons.
The Beneficiary’s competitors’ slot holdings
(231) In Summer 2019 IATA Season, the second- and third-largest slot holders at ORY
were respectively IAG (with a cumulated share in slot holding of approximately
10%) and easyJet (with a share in slot holding of approximately 8%). In Winter
2019/2020 IATA Season, the second- and third-largest slot holders at ORY were
respectively easyJet (with a share in slot holding of approximately 18%) and IAG
(with a cumulated share in slot holding of approximately 10%).
55
(232) In addition, the Beneficiary deployed by far the largest fleet at the airport with
[50-100] aircraft in 2019.
111
According to France’s estimates, the second-largest
airline group operating a base at ORY was the Dubreuil group (Air Caraïbes and
French Bee) with 12 aircraft, followed by IAG and easyJet (6 aircraft each).
Conclusion on the Beneficiary’s market power
(233) Given (i) the Beneficiary's significant share of ORY capacity ([50-60]% in
Summer and Winter IATA Seasons and up to [60-70]% at peak departure time),
(ii) the structural shortage of available airport capacity at ORY, and (iii) the
relative fragmentation of the capacity allocated to other carriers, the Commission
finds that, for the purposes of this Decision, the Beneficiary has significant
market power on the market for the provision of passenger air transport services
to and from ORY.
(iii)Paris airports (CDG+ORY)
IATA Season
Beneficiary’s
average slot
holding
Airport’s
average
congestion
rate
Average
congestion
rates at early
morning and
late evening
hour bands
Beneficiary’s
average slot
holdings at
early morning
and late
evening hour
bands
Summer 2019
[30-40]%
[70-80]%
[70-80]% (hour
band: 4:00-4:59
UTC)
[70-80]% (hour
band: 20:00-20:59
UTC)
[50-60]% (hour
band: 21:00-21:59
UTC)
[30-40]% (hour
band: 4:00-4:59
UTC)
[30-40]% (hour
band: 20:00-20:59
UTC)
[10-20]% (hour
band: 21:00-21:59
UTC)
Winter
2019/2020
[30-40]%
[60-70]%
[60-70]% (hour
band: 5:00-5:59
UTC)
[50-60]% (hour
band: 21:00-21:59
UTC)
[30-40]% (hour
band: 22:00-22:59
UTC)
[30-40]% (hour
band: 5:00-5:59
UTC)
[20-30]% (hour
band: 21:00-21:59
UTC)
[10-20]% (hour
band: 22:00-22:59
UTC)
The Beneficiary’s slot holding
111
See Annex I to France’s response to the first request for information dated 9 December 2020 and
submitted on 10 December 2020).
56
(234) In Summer 2019 IATA Season and Winter 2019/2020 IATA Season, France
estimates that the Beneficiary’s share in slot holding at the Paris airports was
respectively [30-40]% and [30-40]%. Consequently, the Beneficiary’s operations
represented a significant share of the combined capacity of CDG and ORY.
(235) In addition, in Summer 2019 IATA Season, the Beneficiary’s highest share
during the early morning and late evening hour bands (the most congested times
at ORY) reached [30-40]%. In Winter 2019/2020 IATA Season, the Beneficiary’s
highest share during those hour bands reached [30-40]%.
Airports’ congestion
(236) In Summer 2019 IATA Season and Winter 2019/2020 IATA Season, France
estimates that the average congestion rate at the Paris airports amounted to
respectively [70-80]% and [60-70]%.
(237) In Summer IATA Season and Winter IATA Season, although the two Paris
airports are coordinated, there are still available slots for entry or expansion at the
airports, although capacity is only available at CDG and, at CDG, the capacity
available is limited during peak times in Summer IATA Season (below 15%).
112
The Beneficiary’s competitors’ slot holdings
(238) In each of the Summer 2019 and Winter 2019/2020 IATA Seasons, the second-
and third-largest slot holders at the Paris airports were respectively easyJet (with a
share in slot holding of approximately 6% in Summer and 7% in Winter) and IAG
(with a share in slot holding of approximately 5% in Summer and 4% in Winter).
(239) In addition, the Beneficiary deployed by far the largest fleet at the Paris airports
with [250-300] aircraft in 2019. According to France’s estimates, the second-
largest carrier operating a base at the Paris airports was easyJet with 14 aircraft
(based at CDG and ORY), followed by the Dubreuil group (Air Caraïbes and
French Bee, 12 aircraft based at ORY) and IAG (9 aircraft based at CDG and
ORY).
Conclusion on the Beneficiary’s market power
(240) Considering that (i) the Beneficiary’s average slot holding at the Paris airports
was only [30-40]% in Summer 2019 IATA Season (and only [30-40]% in the
Winter 2019/2020 IATA Season), and (ii) there are still slots available at the Paris
airports (thanks to the available capacity at CDG), the Commission considers that
it is possible for the Beneficiary’s competitors to build up a substantial slot
portfolio using the airport capacity not allocated to the Beneficiary.
(241) Therefore, the Commission finds that, for the purposes of this Decision, the
Beneficiary does not have significant market power on the market for the
provision of passenger air transport services to and from the Paris airports.
112
The peak times at CDG do not correspond to the early morning and late evening hour bands, the access
to which is particularly restricted at ORY.
57
(iv) Lyon-Saint Exupéry (LYS)
(242) Based on data provided by France, the Beneficiary’s share of frequencies at LYS
reached [30-40]% in Summer 2019 IATA Season and [40-50]% in Winter
2019/2020 IATA Season.
(243) Considering that the Beneficiary’s share of frequencies is materially higher than
its slot holding,
113
the Commission finds that, for the purposes of this Decision,
the Beneficiary does not have significant market power on the market for the
provision of passenger air transport services to and from LYS.
(v) Conclusion
(244) For those reasons, the Commission considers that, for the purposes of this
Decision, the Beneficiary has significant market power on a relevant market
defined as the provision of passenger air transport services to and from ORY.
Therefore, in line with point 72 of the Temporary Framework and given that the
Measure exceeds EUR 250 million, France has proposed additional measures to
preserve effective competition at ORY.
(245) For the other relevant airports (i.e., CDG, the two Paris airports taken together
and LYS), considering the Beneficiary’s lack of significant market power, the
Commission considers that there is no requirement for France to propose
additional measures in light of point 72 of the Temporary Framework.
(e) Assessment of the Structural Commitments
(246) Under point 72 of the Temporary Framework, in proposing additional measures to
preserve effective competition, Member States may in particular offer structural
or behavioural commitments foreseen in the Commission Notice on remedies
acceptable under the Council Regulation (EC) No 139/2004 and under
Commission Regulation (EC) No 802/2004. Under that Notice, commitments that
are structural in nature, such as the commitment to divest a business unit, are, as a
rule, preferable.
114
(i) Scope of the Structural Commitments
(247) On 31 March 2021, France proposed the Structural Commitments,
115
by which
the Beneficiary would undertake to make available to a remedy taker up to 18
daily slots at Orly airport by way of code-sharing
116
and to definitively transfer
113
The share of frequencies is calculated on the basis of the total number of slots used, and not the total
number of slots available according to the airport’s capacity. In other terms, the share of frequencies
does not factor in the congestion rate. In particular, France estimates that the average congestion rate at
LYS was approximately [40-50]% in Summer 2019 IATA Season and approximately [30-40]% in
Winter 2019/2020 IATA Season. The Beneficiary’s slot holding would thus amount to approximately
[10-20]% in each of the Summer 2019 in Winter 2019/2020 IATA Seasons.
114
Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under
Commission Regulation (EC) No 802/2004, OJ C 267, 22.10.2008, p. 1, recital 15.
115
See the Annex to this decision.
116
Under the Structural Commitments, code-sharing is used as a provisional solution until the slots are
definitively transferred from Air France to the remedy taker.
58
the slots (without transferring staff or else) to the remedy taker on the later of: (i)
the date on which the applicable legal framework allows the definitive transfer of
slots (without any transfer of staff or other), and (ii) the expiry date of the period
during which compliance of the remedy taker with the requirement to maintain a
base at Orly airport is controlled (i.e. four years after the first cut-off date for the
call for proposals implementing the code-sharing procedure). As further explained
in recital (76), the remedy taker will be approved following a call for proposals
published by the Monitoring Trustee, who will regularly set deadlines for the
submission of proposals (cut-off dates).
(248) The main purpose of the Structural Commitments is to ensure that the Beneficiary
eventually transfers the slots (rights) necessary for the establishment or expansion
of an operating base by a competitor at the congested airport where the
Beneficiary holds significant market power (ORY) and to create conditions to
sustain effective competition in the longer term at that airport. As further detailed
below, the Commission considers that such a purpose is achieved, as the
Structural Commitments combine (i) adequate conditions for the transfer of slots
to a remedy taker (i.e. free and unconditional transfer after code-sharing), and (ii)
a significant volume of slots (i.e. up to 18 daily slots, while no slot is normally
available for entry or expansion at ORY).
(249) France considers that the legal framework currently applicable to slot allocation at
ORY does not allow for the definitive transfer of slots from the Beneficiary and
the remedy taker in appropriate conditions. In particular, France argues that the
specific wording of the administrative cap at ORY (referring to the maximum
number of slots that can be allocated) makes it legally questionable to transfer
slots by means of an exchange with additional slots specifically allocated for that
purpose. In addition, the Commission confirmed with France and COHOR that
the latter interprets restrictively the possibilities of transfer of slots under the Slot
Regulation, notably as part of a partial take-over of an air carrier, reducing the
attractiveness of the remedy slots, hence the effectiveness of such possible
commitments. Conversely, France submits that code-sharing, i.e. a joint operation
under Article 10(8) of the Slot Regulation, could be a provisional solution for the
use by the remedy taker of slots held by Air France, provided that specific
conditions are imposed on Air France, ensuring that the remedy taker can
compete effectively with Air France.
(250) In order to assess whether code-sharing, under the proposed conditions, could be
an effective remedy, the Commission assessed whether the following two
conditions were fulfilled: (i) the freedom of the remedy taker to use, under code-
sharing, the slots held by Air France is not restricted to any material extent
compared to the freedom to use slots that would have been transferred from Air
France; and (ii) code-sharing under the proposed conditions is considered as a
workable and attractive arrangement by potential remedy takers. The Commission
considers that the first condition is fulfilled, as Air France has neither the
ability
117
nor the incentive
118
to terminate the code-share agreement before the
117
Air France only has the right to terminate the code-share agreement in case of breach, by the remedy
taker, of its obligation to maintain a base at ORY. It is up to the Commission to find such a breach.
Furthermore, in such a case, a new code-sharing procedure is initiated.
59
transfer of the slots, and the transfer will automatically take place four years after
the first cut-off date of the call for proposals (except if delayed by the applicable
legal framework). In addition, as two additional explicit conditions that will be
subject to monitoring, Air France can neither interfere in the operations of the
remedy taker nor impede them. To the contrary, Air France, in its position of slot
holder, must support the remedy taker in its position of slot user. With regard to
the second condition, […]
119
[…]. The Commission thus considers that code-
sharing, under the proposed conditions, would not deter potential remedy takers.
(251) Therefore, considering that the commitments proposed by France contain
sufficient safeguard measures to guarantee that the remedy taker can use the
remedy slots freely and autonomously until their transfer, the Commission
considers that the provisional recourse to code-sharing does not call into question
the effectiveness of the commitments proposed by France.
(252) According to the Explanatory Memorandum for the Commission Proposal for a
Regulation of the European Parliament and of the Council on common rules for
the allocation of slots at European Union airports,
120
“the emergence of a strong
competitor at a given airport requires it to build up a sustainable slot portfolio to
allow it to compete effectively with the dominant carrier (usually the “home”
carrier).”
(253) Lack of access to slots constitutes a significant barrier to entry or expansion at
Europe’s busiest airports.
121
By virtue of the Slot Regulation, slots are essential
for airlines’ operations as only air carriers holding slots are entitled to get access
to the airport infrastructure services delivered by airport managers of coordinated
airports and, consequently, to operate routes to or from these airports. Under the
Slot Regulation, slots can only be exchanged or transferred between airlines in
certain specified circumstances, subject to the explicit confirmation from the slot
coordinator under the Slot Regulation.
(254) The commitments consisting in making slots available at ORY (through code-
sharing followed by a transfer) therefore remove the main barrier to entry and
expansion of the Beneficiary’s competitors at that fully congested airport. The
data collected from COHOR demonstrate that the requests for slots at ORY
systematically exceeds the available capacity,
122
and that no or almost no request
for new slots at ORY can be accommodated through the normal workings of the
general slot allocation procedure, as the pool of unused slots at ORY is empty.
118
Air France cannot claim compensation from the remedy taker under any circumstances. Furthermore,
in case of early termination of the code-share agreement by the remedy taker, Air France will return
the slots to the pool and not claim them back through the general slot allocation procedure.
119
[…].
120
COM/2011/827 final of 1 December 2011.
121
See e.g. Case SA.57153 – Germany – COVID-19 – Aid to Lufthansa, recital (224).
122
As an example, according to COHOR, the requests submitted by all airlines at ORY for the Summer
2020 IATA Season represented 232 658 slots, i.e. almost the annual volume at which the airport is
limited (250 000 slots for both the Summer and Winter IATA Seasons, from which the number of slots
reserved for Public Service Obligations routes is to be deducted).
60
The only exception consists in slots formerly held by a bankrupt carrier and that
could not be sold as part of a partial or full take-over of that carrier. Even in those
exceptional circumstances, only a minority of the requests for slots at ORY can be
accommodated, and the fragmented allocation of the slot pool makes it unlikely to
trigger the emergence of a strong competitor.
123
(255) Based on its decisional practice in merger and antitrust cases in the aviation
sector, the Commission finds that a commitment by the Beneficiary to transfer
slots at the congested airport where it has significant market power, to allow
competitors to set up a base, is the most effective competition measure in order to
prevent undue distortions of competition.
(256) The remedy is attractive from a competition standpoint because it will allow
structural competition with the Beneficiary in the relevant market where the
Beneficiary holds significant market power.
(257) The Commission considers that the amount of 18 slots per day is sufficient for the
remedy taker to establish or expand viably its based operations at ORY
124
by, for
example, basing three aircraft and operating three rotations per day with each of
them,
125
or basing two aircraft operating five and four rotations per day with each
of them.
126
If the remedy taker is a long-haul carrier, the 18 slots per day would
enable it to base a higher number of aircraft. As slots are not linked to any
specific route, airlines can use them according to their business plan (i.e., on any
route of their choice). This will allow the remedy taker to achieve economies of
scale and scope and to compete more effectively with the Beneficiary.
The
Commission notes in that respect that the addition of two aircraft by Air France’s
two competitors basing the largest fleet at ORY after the Dubreuil group
127
(i.e.
IAG and easyJet) would already increase their based fleet by a third, which brings
substantial advantages at ORY, whose infrastructure is designed to maximise the
operational efficiency of such air carriers.
(258) France committed that, in case of early termination of the code-share agreement
by the remedy taker, the Beneficiary would return the slots to the pool and not
request them, with an effect similar to a non-reacquisition clause. For the
123
As an example, following the bankruptcy of Aigle Azur, 9 868 slots (corresponding to approximately
27 daily slots) were reallocated in December 2019 on the basis of the requests on waiting list for the
Summer 2020 IATA Season. No more than 1 460 slots (corresponding to four daily slots) were
allocated to one air carrier (as two carriers of the Air France group were allocated slots, Air France
received twice this volume of slots at group level).
124
As explained in recital (270), in case of competing proposals, priority will be given to already based
carriers at ORY.
125
As is the case for e.g. Transavia France at ORY.
126
As is the case for e.g. low cost carriers like easyJet at ORY.
127
As mentioned in this recital, long-haul carriers like those belonging to the Dubreuil group operate
fewer flights per day than carriers specialising in short-haul routes. Therefore, the amount of slots
made available by Air France (18 slots) would enable them to base more aircraft than two or three. It is
thus more difficult to compare the number of aircraft that an air carrier like those belonging to the
Dubreuil group would base at ORY to its current based fleet (12 aircraft for the Dubreuil group).
61
avoidance of doubt, this does not prevent the Beneficiary from obtaining slots that
the remedy taker would return to the pool after their definitive transfer.
(259) The Commission concludes therefore that the scope of the Structural
Commitments is appropriate and effective to preserve effective competition at
ORY.
(ii) Duration of the Structural Commitments
(260) The slots will be offered to potential remedy takers for a period of four years after
the first cut-off date for the call for proposals implementing the code-sharing
procedure. In other terms, the call for proposals will be open for four years after
its first cut-off date, unless the Beneficiary and a remedy taker approved by the
Commission enter into the code-share agreement before that expiry date.
128
(261) The Commission […].
129
It considers that […], despite the currently adverse
market conditions, competitors would be willing to take up the slots made
available by the Beneficiary as soon as possible,
130
so that the Beneficiary and the
remedy taker would enter into a code-share agreement well in advance of the
expiry of the period referred to in recital (260).
131
In any case, that time-frame is
expected to be sufficiently long for the passenger air transport sector to recover
from the COVID-19 crisis and for passenger air traffic to return to pre-crisis
levels.
(262) In addition, the period referred to in recital (260) during which the Beneficiary
will offer code-sharing corresponds to the enforcement period of the obligation of
the remedy taker to base at ORY the aircraft using the remedy slots, i.e. four years
after the first cut-off date for the call for proposals implementing the code-sharing
procedure.
(263) Pursuant to the obligation to maintain a base at ORY, the number of aircraft based
by the remedy taker at ORY to use the remedy slots will correspond during four
years after the first cut-off date for the call for proposals to the number indicated
by the remedy taker in its proposal. For that purpose, every potential remedy taker
must indicate in its proposal the average number of aircraft that it will base at
ORY to use the remedy slots during each IATA season covered by that period.
That average number may be expressed as a +/- 20% range to account for
operational contingencies during the season.
128
The code-share agreement will in turn be in force until the transfer of the slots, which shall
automatically and unconditionally take place on the later of: (i) the date on which the applicable legal
framework allows it, and (ii) the expiry date of the period during which compliance of the remedy
taker with the requirement to maintain a base at Orly airport is controlled (see recital (247)).
129
See recital (250).
130
[…].
131
Note that the signature of the code-share agreement does not mean that the operations of the remedy
taker will start immediately after its entry into force. It is expected that the remedy taker will start its
new or expanded based operations at ORY after a phase-in period following the signature of the code-
share agreement.
62
(264) On the one hand, that obligation ensures that the increased competition at ORY is
maintained over a sufficiently long period and avoids opportunistic requests for
slots without intention to translate them into viable and competitive additional
operations. On the other hand, the Commission considers that that obligation is
defined in the Structural Commitments in such a way that it does not unduly
rigidify the operations of the remedy taker. Furthermore, the procedure for the
control of the obligation does not result in a heavy, litigation-prone,
administrative burden.
132
(265) In light of all the above, the Commission concludes that the duration of the
Structural Commitments is sufficient in order for the Structural Commitments to
be effective. Additionally, given the fact that the creation or the expansion of a
base by a competing carrier implies structural changes in the competitive
landscape at ORY, the Commission acknowledges the structural nature of the
Structural Commitments, in accordance with point 72 of the Temporary
Framework.
(iii)Eligibility criteria for the remedy taker
(266) As mentioned in recital (73), to be eligible to obtain the slots, a potential remedy
taker must:
(a) be an air carrier holding a valid operating licence issued by an EU/EEA
Member State;
(b) be independent of Air France-KLM and unconnected with Air France-
KLM at the time of signing of the code-share agreement;
(c) not be subject to competition remedies on account of having received a
COVID-19 recapitalisation instrument of more than EUR 250 million;
133
(d) commit to comply with the applicable EU and national labour laws, as
interpreted, in particular and as relevant, by the EU Courts (see e.g.
Nogueira, Joined Cases C-168/16 and C-169/16); and
(e) have or establish an operating base at ORY in compliance with Article R.
330-2-1 of the French Civil Aviation Code, including all the aircraft using
the remedy slots, except aircraft that the remedy taker cannot, for
operational reasons, base at ORY using the remedy slots (the burden of
proof rests on the remedy taker).
134
132
At the end of each IATA season covered by that period, the remedy taker will submit a report to the
Monitoring Trustee on the average number of aircraft based at ORY to use the remedy slots over the
season, accompanied by any appropriate supporting document (notably the list detailing, for each day
of the season, the earliest departure and latest arrival remedy slots used by aircraft based at ORY).
133
Under that criterion, the potential remedy takers that fulfil cumulatively the two following conditions
are not eligible: (i) they have benefitted from a COVID-19 recapitalisation measure above EUR 250
million; and (ii) they are subject to additional measures to preserve effective competition in the
relevant markets where they have significant market power for the purposes of point 72 of the
Temporary Framework.
134
This means that potential remedy takers must explain in their proposals why, from an operational point
of view, the remedy slots that they request for inbound flying cannot be used for based operations.
63
(267) The eligibility criterion relating to the operating licence is necessary to ensure that
the remedy taker has the ability to operate domestic and intra-EU/EEA flights
without restriction, thus guaranteeing connectivity at ORY, which is a key
evaluation criteria by the Commission.
(268) The exclusion criterion applying to beneficiaries of a large recapitalisation aid
subject to competition remedies is necessary to avoid that companies that have
been subject to additional measures aiming at restoring a level playing field, as
referred to in point 72 of the Temporary Framework, can obtain a competitive
advantage by the same mechanism.
135
(269) As regards the final eligibility criterion, relating to the base, it is necessary to
allow for effective competition, thus ensuring the effectiveness of these
commitments. The Commission observes in that respect that the criterion
effectively requires the remedy taker to maximise the number of based aircraft at
ORY and to make use of the slots, thus ensuring that the overall volume of
services at ORY is not reduced as a consequence of the Structural Commitments.
Furthermore, it supports the entry or expansion of a viable competitor at ORY and
puts the Beneficiary under the threat of competition on routes to/from the airport.
(270) In case of competing proposals, the Commission will give priority to those
submitted by potential remedy takers that already operate a base at ORY, and then
those that offer in particular the greatest number of destinations served
(connectivity) and the largest capacity deployed at the airport (in number of seats
for the IATA Summer and Winter Seasons). The priority given to carriers already
based at ORY in case of competing proposals is justified by the specific market
structure at ORY, characterised by a relatively high number of carriers based at
the airport that have no possibility to expand, due to the full congestion of the
airport. Those carriers have a strong incentive to base at least two aircraft using
the remedy slots, in order to get access to the maximum number of early morning
departure slots and late evening arrival slots.
136
Therefore, the Commission
considers it unlikely that already based carriers would request a number of slots
and serve a number of destinations lower than non-based carriers (new entrants)
would.
137
(271) For all of the above, the Commission concludes that the eligibility criteria for the
potential remedy takers are appropriate, as they (i) allow a sufficient number of
airlines that may be interested in the available slots to participate in the call for
proposals, and (ii) ensure proportionate requirements to access the slots, thus
facilitating the activation of the measures to preserve effective competition.
135
As the number of potential remedy takers subject to competition remedies is expected to be limited,
that exclusion criterion does not diminish the effectiveness of the Structural Commitments.
136
Air France will make available one early morning departure slot and one late evening arrival slot to a
remedy taker basing one aircraft at ORY to use the remedy slots, and up to two early morning
departure slots and two late evening arrival slots to a remedy taker basing two or more aircraft at ORY
to use the remedy slots.
137
In addition, the Commission have the right to reject proposals that are not credible from an economic
or operational point of view, regardless of whether the proposals are submitted by based or non-based
carriers.
64
(iv) Conclusion on the Structural Commitments
(272) In light of all the above, the Commission concludes that the Structural
Commitments proposed by France to preserve effective competition at ORY are
in line with point 72 of the Temporary Framework.
3.3.6.2. Other governance conditions
(273) According to point 71 of the Temporary Framework, the beneficiary of a COVID-
19 recapitalisation should not engage in aggressive commercial expansion and
excessive risk taking. France confirmed that the Measure will contain a
prohibition for the Beneficiary to engage in aggressive commercial expansion
financed by State aid and excessive risk taking (see recital (89)).
(274) Point 73 of the Temporary Framework requires that: “Beneficiaries receiving a
COVID-19 recapitalisation measures are prohibited from advertising it for
commercial purposes”. This requirement is met, since France committed that the
Beneficiary will not advertise the Measure for commercial purposes (see recital
(90)).
(275) Point 74 of the Temporary Framework states that: “As long as at least 75% of the
COVID-19 recapitalisation measures have not been redeemed, beneficiaries
other than SMEs shall be prevented from acquiring a more than 10% stake in
competitors or other operators in the same line of business, including upstream
and downstream operations”. The Commission observes that France committed
that the Beneficiary will respect this condition, taking into account the possible
exception mentioned in point 75 of the Temporary Framework (see recital (91)).
(276) The Commission also notes that France confirmed that the Beneficiary will also
abide by the terms and conditions set out in point 76 of the Temporary
Framework regarding not to use the State aid to cross-subsidise economic
activities of integrated undertakings that were in difficulty already on 31
December 2019 (see recital (92)). In this respect, France also confirmed that the
Beneficiary was not in difficulty within the meaning of the GBER on 31
December 2019 (see recital (38)). France also committed that the compliance with
this commitment will be subject to the monitoring by the Monitoring Trustee.
(277) Point 77 of the Temporary Framework states that: “As long as the COVID-19
recapitalisation measures have not been fully redeemed, beneficiaries cannot
make dividend payments, nor non-mandatory coupon payments, nor buy back
shares, other than in relation to the State”. The Commission observes that France
commits that, as long as the Measure has not been fully redeemed, the
Beneficiary cannot make dividend payments, nor non-mandatory coupon
payments, nor buy back shares, other than in relation to the State (see recital
(93)). The Commission also notes that the dividend ban does not apply to intra-
group dividend payments made to the Holding or Air France by companies that
are (directly or indirectly) fully owned by the Holding or Air France. Moreover,
for companies in which the Holding or Air France hold less than 100% of the
shares, the dividend ban shall not apply in case the Holding or Air France provide
financial support to the company following the approval of the COVID-19
recapitalisation measures in favour of the Holding or Air France, by way of an
equity injection or a loan, and all other shareholders provide at least the same
support (pari-passu and pro-rated). The last exclusion is justified by the need not
65
to dissuade private investment into the subsidiaries of Air France and the
Holding, as such private investment would allow also for a faster redemption of
the Measure. In any event, the above exceptions should not be construed in a way
that allows possible circumvention of the dividend ban. They will also be subject
to the monitoring by the Monitoring Trustee.
(278) Point 78 of the Temporary Framework states that “[a]s long as at least 75% of
the COVID-19 recapitalisation measures has not been redeemed, the
remuneration of each member of the beneficiaries’ management must not go
beyond the fixed part of his/her remuneration on 31 December 2019. For persons
becoming members of the management on or after the recapitalisation, the
applicable limit is the lowest fixed remuneration of any of the members of the
management on 31 December 2019. Under no circumstances, bonuses, other
variable or comparable remuneration elements shall be paid”. The Commission
observes that the management of the main companies of the Beneficiary (i.e. Air
France-KLM S.A., Air France S.A. and Transavia France S.A.S.) will be subject
to this condition (recital (94)). As those entities account for almost the entirety of
the Beneficiary’s annual turnover, the Commission considers the commitment
proportionate. Moreover, the Commission notes that, in order to avoid possible
circumvention of this commitment, the remuneration cap and ban will apply to
the members of management of all other entities of the Beneficiary who are also
part of the management of Air France-KLM S.A., Air France S.A. et Transavia
France S.A.S.
3.3.7. Exit of the State from the participation resulting from the
recapitalisation
(279) Pursuant to point 79 of the Temporary Framework, “beneficiaries other than
SMEs that have received a COVID-19 recapitalisation of more than 25% of
equity at the moment of intervention must demonstrate a credible exit strategy for
the participation of the Member State, unless the State’s intervention is reduced
below the level of 25% of equity within 12 months from the date of the granting of
the aid”.
138
Pursuant to point 80 of the Temporary Framework, the exit strategy
must lay out the plan of the beneficiary on the continuation of its activity and the
use of the funds invested by the State, including a repayment schedule and the
measures that the beneficiary and the State will take to abide by the repayment
schedule. Pursuant to point 81 of the Temporary Framework, the exit strategy
should be prepared and submitted to the Member State within 12 months after aid
is granted and must be endorsed by the Member State.
(280) France confirmed that the Beneficiary will send, and that it will endorse, a
credible exit strategy within 12 months after the aid is granted, unless the State’s
intervention is reduced below the level of 25% of equity by that deadline, as
explained in recital (95). The Commission concludes that the conditions set out in
points 79 to 81 of the Temporary Framework are satisfied.
(281) In addition, France confirmed that the Beneficiary will report to France on the
progress in the implementation of the repayment schedule in compliance with
138
In line with footnote 52 of the Temporary Framework, hybrid instruments granted by the State should
be counted as equity.
66
point 82 of the Temporary Framework. The Beneficiary and France will also
comply respectively with the publication and reporting obligations set out in
points 83 to 84 the Temporary Framework (see recitals (107) and (108)).
(282) Finally, in line with point 85 of the Temporary Framework, France committed to
notify a restructuring plan to the Commission for approval if, within 6 years after
the recapitalisation, France’s intervention has not been reduced below 15% of the
Holding’s equity (see recital (108)(b)).
3.3.8. Section 4 of the Temporary Framework
(283) France confirmed that it will comply with the reporting and monitoring
obligations contained in section 4 of the Temporary Framework, as explained in
recital (106).
(284) In particular, France commits that:
(a) it will publish relevant information on the recapitalisation granted to the
Beneficiary on the comprehensive State aid website or Commission’s IT
tool within three months from the moment of granting in line with point
88 of the Temporary Framework;
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(b) it will submit annual reports to the Commission, in line with point 89 of
the Temporary Framework; and
(c) it will ensure that detailed records regarding the granting of aid under the
Measure (including all information necessary to establish that the
necessary conditions have been observed) are maintained for ten years
upon granting of the aid and are provided to the Commission upon
request, in line with point 91 of the Temporary Framework.
3.3.9. Conclusion on compliance with the Temporary Framework
(285) It follows from the above elements that the Measure is in line with sections 3.11
and 4 of the Temporary Framework.
3.4. Conclusion on the assessment of the Measure
(286) The Commission considers that the Measure complies with the conditions set out
in the Temporary Framework and is designed in a way that limits its negative
effects on competition and trade between Member States, and such negative
effects are in any event outweighed by the positive effects of the Measure. The
Measure in favour of the Beneficiary will have positive effects for the
connectivity needs within, and to and from France and the recovery of the French
economy after the COVID-19 outbreak. The cumulated effects of the overall
transaction are proportional and appropriate to meet those objectives.
(287) On the basis of the scenario currently contemplated by France, in light
particularly of the commitments made by the French government, and considering
the conditions and terms of the planned Measure described under section 2, the
139
Referring to information required in Annex III to Commission Regulation (EU) No 651/2014.
67
Commission therefore concludes that the Measure is necessary, appropriate and
proportionate to remedy a serious disturbance in the economy of a Member State
pursuant to Article 107(3)(b) TFEU, as applied by the Commission under section
3.11 of the Temporary Framework.
4. CONCLUSION
The Commission has accordingly decided not to raise objections to the aid on the
grounds that it is compatible with the internal market pursuant to Article 107(3)(b) of the
Treaty on the Functioning of the European Union.
If this letter contains confidential information which should not be disclosed to third
parties, please inform the Commission within fifteen working days of the date of receipt.
If the Commission does not receive a reasoned request by that deadline, you will be
deemed to agree to the disclosure to third parties and to the publication of the full text of
the letter in the authentic language on the Internet site:
http://ec.europa.eu/competition/elojade/isef/index.cfm.
Your request should be sent electronically to the following address:
European Commission,
Directorate-General Competition
State Aid Greffe
B-1049 Brussels
Yours faithfully,
For the Commission
Margrethe VESTAGER
Executive Vice-President
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Annex Engagements des autorités françaises - remèdes
- 1.1 Volume : jusqu’à 18 créneaux cédés sur Orly à un bénéficiaire des remèdes
- 1.2 Bénéficiaire :
Pour être éligible, un demandeur doit :
o Être un transporteur aérien titulaire d'une licence d'exploitation valable
délivrée par un État membre de l’UE/EEE ;
o Être indépendant d’Air France-KLM et sans lien avec Air France-KLM à
la date d’entrée en vigueur de l’accord de partage de code ;
o Ne pas être soumis à des remèdes concurrentiels dans le cadre d’un
instrument de recapitalisation de plus de 250 millions d’euros dans le
contexte de la Covid-19 ; et
o S’engager à respecter le droit du travail national et de l’UE applicable, tel
qu’interprété notamment, le cas échéant, par les tribunaux européens (cf.
par exemple Nogueira, Affaires jointes C-168/16 et C-169/16).
o Disposer ou installer une base d’exploitation à Orly incluant tous les avions
utilisant les créneaux concernés, à l’exception de ceux pour lesquels les
créneaux ne permettent pas opérationnellement cette installation (la preuve
de cette impossibilité incombant au bénéficiaire), dans le respect de
l’article R. 330-2-1 du code de l'aviation civile. Une base signifie que les
avions du demandeur susmentionnés stationnent durant la nuit à l’aéroport
d’Orly et sont utilisés pour exploiter plusieurs liaisons depuis cet aéroport
et que les équipages qui exploitent lesdits avions prennent et terminent
leurs services de manière habituelle à l’aéroport d’Orly. Le nombre
d’avions basés pour exploiter les créneaux constitutifs des remèdes est
explicité par le candidat dans sa candidature.
Le monitoring trustee désigné par Air France après avis conforme de la Commission
contrôle ce dernier critère de maintien d’une base à Orly pour une durée de 4 années à
compter de la première date butoir de l’appel à propositions.
Dans ce cadre, le monitoring trustee contrôle que le nombre d’avions basés à Orly pour
l’exploitation des créneaux constitutifs des remèdes pendant cette période correspond à
celui indiqué par le bénéficiaire des remèdes dans sa candidature pour l’exploitation des
créneaux constitutifs des remèdes.
140
Si les autorités françaises disposent d’éléments
140
Chaque demandeur indique dans sa candidature le nombre moyen d’avions qu’il basera à Orly pour
l’exploitation des créneaux constitutifs des remèdes pendant chaque saison IATA couverte par la
période de contrôle du critère de maintien d’une base à Orly. Ce nombre moyen peut être exprimé par
une fourchette de +/- 20%, de façon à prendre en compte les aléas opérationnels en cours de saison. A
la fin de chaque saison IATA couverte par cette période, le bénéficiaire des remèdes soumet un rapport
au monitoring trustee sur le nombre moyen d’avions qu’il a basés à Orly pour l’exploitation des
créneaux constitutifs des remèdes durant la saison IATA échue, accompagné de toute pièce
justificative appropriée (notamment la liste détaillant sur chaque jour de la saison IATA échue les
premiers créneaux de départ et les derniers créneaux d’arrivée obtenus par le bénéficiaire grâce aux
remèdes et utilisés par les avions qu’il a basés à Orly).
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démontrant que le bénéficiaire des remèdes enfreint son obligation de maintien d’une
base à Orly, elles peuvent les transmettre au monitoring trustee et à la Commission. Le
monitoring trustee ou la Commission prend en compte ces éléments dans l’analyse de la
situation. Si la Commission, sur avis motivé du monitoring trustee, constate que le
bénéficiaire des remèdes enfreint son obligation de maintien d’une base à Orly et
considère que la situation n’est pas justifiée, à titre exceptionnel, par des circonstances
ayant un impact significatif sur les conditions de marché, le monitoring trustee doit en
informer le bénéficiaire des remèdes et Air France. Le bénéficiaire des remèdes doit alors
remédier à la situation dans les trois mois suivant l’information du monitoring trustee.
Si le monitoring trustee constate que l’infraction persiste après ces trois mois, Air France
a le droit de résilier le contrat de partage de code. Dans ce cas, une nouvelle procédure de
désignation d’un bénéficiaire de l’ensemble des remèdes (à laquelle le précédent
bénéficiaire ne pourra participer) sera lancée, à l’issue de laquelle Air France conclura, si
un nouveau bénéficiaire est sélectionné, un nouveau partage de code avec engagement de
transfert définitif des créneaux horaires (sans transfert du personnel ou autre) à la
dernière de ces deux dates : (i) la date à laquelle le cadre juridique permet le transfert
définitif des créneaux horaires (sans transfert du personnel ou autre), et (ii) l’expiration
de la période de contrôle du critère de maintien d’une base à Orly.
- 1.3 Mise en œuvre :
o Partage de code avec engagement de transfert définitif des créneaux
horaires (sans transfert du personnel ou autre) à la dernière de ces deux
dates : (i) la date à laquelle le cadre juridique permet le transfert définitif
des créneaux horaires (sans transfert du personnel ou autre), et (ii)
l’expiration de la période de contrôle du critère de maintien d’une base à
Orly;
o Les créneaux mis à disposition du bénéficiaire par Air France au moment
de la conclusion du contrat de partage de code devront correspondre aux
horaires demandés par le bénéficiaire à +/- 10 minutes pour des vols court-
courrier et +/- 30 minutes pour des vols long-courrier. Par exception, Air
France ne sera pas obligée de donner plus d’un créneau de départ entre 6h
et 7h (heure locale) et plus d’un créneau d’arrivée entre 22h et 23h30
(heure locale) par avion basé par le bénéficiaire des remèdes pour exploiter
les créneaux constitutifs des remèdes, dans la limite de deux créneaux de
départ entre 6h et 7h (heure locale) et deux créneaux d’arrivée entre 22h et
23h30 (heure locale). Il est entendu que pour ces créneaux, Air France ne
pourra proposer des créneaux après 7h ou avant 22h (heure locale) si les
horaires demandés par le bénéficiaire sont avant 7h ou après 22h (heure
locale). Les créneaux mis à disposition par Air France au moment de la
conclusion du contrat de partage de code doivent permettre au bénéficiaire
des remèdes d’effectuer les rotations prévues sur la base des horaires
demandés par le bénéficiaire. Si le bénéficiaire des remèdes considère que
les créneaux proposés par Air France ne lui permettent pas d’effectuer les
rotations prévues, il peut en informer le monitoring trustee, qui transmettra
un avis motivé à la Commission. Si la Commission confirme que les
créneaux proposés par Air France ne permettent pas au bénéficiaire des
remèdes d’effectuer les rotations prévues, Air France devra proposer au
bénéficiaire des remèdes et à la Commission un choix alternatif, soumis à
la validation de la Commission. En l’absence de validation de la
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Commission, Air France devra mettre à disposition du bénéficiaire les
créneaux aux horaires demandés par le bénéficiaire. Cette disposition ne
doit cependant pas conduire Air France à devoir céder plus de créneaux
entre 6h et 7h et 22h et 23h30 que les seuils précisés supra ;
o Renouvellement tacite du contrat de partage de code en l’absence de
transfert définitif des créneaux horaires au bénéficiaire des remèdes (sans
transfert du personnel ou autre) ; seul le bénéficiaire des remèdes peut
décider de mettre un terme à l’accord, sans pénalité financière ; Air France
ne dispose d’aucun droit de résiliation unilatérale autre que celui relatif à
l’infraction de l’obligation de maintien d’une base précité, y compris en cas
de changement de contrôle sur le bénéficiaire des remèdes ou de
partenariat commercial conclu par ce dernier avec des compagnies tierces ;
o Air France ne peut prétendre à aucune compensation financière, même si
les créneaux ne sont pas utilisés en conformité avec le règlement sur les
créneaux horaires, notamment avec la règle « créneau utilisé ou perdu » ;
o Solution structurelle et pérenne : créneaux non exploitables par Air France,
puis transférés si juridiquement possible à l’avenir ;
o Les créneaux horaires sujets de l’accord de partage de code sont retournés
au pool par Air France en cas de résiliation anticipée par le bénéficiaire des
remèdes. Dans ce cas, Air France ne demandera pas ces créneaux via cette
remise au pool. Pour lever toute ambiguïté, cet engagement ne s’applique
pas aux créneaux que le bénéficiaire des remèdes retournerait au pool après
le transfert définitif des slots au bénéficiaire.
o Le bénéficiaire des remèdes sera approuvé par la Commission à l’issue
d’une procédure de sélection transparente et non-discriminatoire. L’appel à
propositions correspondant sera ouvert en permanence à compter de sa date
de publication par le monitoring trustee, qui fixera régulièrement des dates
butoirs pour la réception des propositions. La Commission, aidée par le
monitoring trustee, évaluera les propositions reçues.
o La Commission pourra rejeter les propositions qui ne sont pas crédibles
d’un point de vue économique ou opérationnel, ou du respect du droit
européen de la concurrence.
o En cas de propositions concurrentes, elle devra donner priorité aux
demandeurs ayant déjà une base à l’aéroport d’Orly, puis à ceux offrant
notamment le plus grand nombre de destinations (connectivité) et
déployant la plus grande capacité à l’aéroport (en nombre de sièges
pendant les saisons IATA été et hiver).
o Si la Commission donne une évaluation identique à plusieurs propositions
concurrentes (égalité des propositions), elle devra permettre à Air France
de classer ces propositions selon les critères transparents de son choix, par
exemple le niveau des aides d’État reçues par les demandeurs ou leur
respect de normes sociales, et donner priorité à la proposition la mieux
classée par Air France.
o La mise à disposition des créneaux sera opérée par Air France à titre
gratuit, sous le contrôle du monitoring trustee.
o Air France ne disposera d’aucun droit relatif à la capacité déployée par le
bénéficiaire des remèdes. Le bénéficiaire du remède disposera d’une
indépendance commerciale et opérationnelle totale, et Air France n’aura
aucun pouvoir de contrôle commercial ou opérationnel sur les opérations
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du bénéficiaire des remèdes (choix des destinations, des types d’appareils,
des tarifs, etc.).
o Air France s’engage à mettre tout en œuvre pour faciliter les opérations du
bénéficiaire des remèdes, y compris l’obtention, le cas échéant, des droits
de trafic par Air France (sans préjudice des droits de trafic que le
bénéficiaire des remèdes devrait éventuellement obtenir) si certaines
dessertes envisagées par le bénéficiaire des remèdes le nécessitent, ainsi
que le cas échéant, le retiming des créneaux et/ou les changements y
afférant (conversion de créneaux de départ/arrivée, changements de
destinations, d’avions, etc.).
o Ce remède est d’application à compter de la date d’adoption de la décision
et doit être proposé pendant 4 années à compter de la première date butoir
de l’appel à propositions. Quelles que soient les circonstances, aucun appel
à propositions ne pourra être organisé au-delà de cette échéance.
